S.T. Desai, C.J.
1. The principal question that arises on this petition lies in a narrow compass and relates to the construction of Section 44(3) of the Saurashtra Land Reforms Act 951 (No. XXV of 1951) That Act as is clear from its various provisions was enacted primarily for the purpose of putting an end to the Girasdari system and to regulate the relationship between the Girasdar and their tenants to enable the latter to become occupants of the land held by them and to provide for the payment of compensation to the Girasdars for the extinguishment of their rights. Petitioners who are 73 in number cultivated lands situated in Charkha in the Babra Taluka Madhya Saurashtra District of the State of Bombay. They were grantees from talukdars of what are knows as Chav Hak rights which put them in a status higher than that of an ordinary tenant. Respondents Nos. 2 and 3 are Girasdars of the lands cultivated by the petitioners within the meaning of the expression Girasdar in Section 2(15) of the Land Reforms Act to be referred to by us as the 'Act'. According to the petitioners they had become full and absolute owners of the land by virtue of the grant in their favour and enjoyed full and exclusive right as 'Chav-Hak' holders in respect of the land held by them. The Act came in force in September 1951 and by operation of it all rights title and interest of the Girasdars were extinguished and became vested in the State and the tenants became occupants of the State in accordance with the provisions laid down in the Act. Section 25 of the Act provides for the acquisition of the occupancy rights by tenants on payment of the amount equal to six times the assessment in respect of land held by them subject to certain restrictions regarding Gharkhed etc. contained in Chapter IV of the Act. The petitioners being grantees of 'Chav-Hak' rights enjoyed a status higher than that of ordinary tenants and in various provisions of the Act reference is made to the higher status of a grantee of such rights. Proviso to Section 28 rules that a tenant who has acquired 'Chav-Hak' shall acquire occupancy rights without any payment as laid down in that section.
2. It is the case of the petitioners that being 'Chav-Hak' holders they applied for and obtained occupancy certificate without any payment of compensation and became direct occupants of their holdings from the State. It is also their case that as such direct occupants their rights and obligations began to be governed by the provisions of Bombay Land Revenue Code and they became liable to pay assessment only to the State.
3. It will be convenient to set out here the provisions of Section 44 in extenso. Although the point before us is really a short one considerable argument has been advanced before us on behalf of the petitioners Girasias. Section 44 is under:
(1) For the purposes of this assessment shall mean in relation to any land until the village in which such land is situated is surveyed and settled assessment calculated on an arithmetic average of assessment leviable in the surrounding and adjoining Khalsa or Assessed non Khalsa lands or villages.
(2) For the purpose of determining the assessment on any land the Mamlatdar may hold an inquiry in the prescribed manner and fix the assessment on such land and the assessment so determined shall be published in such manner as may be prescribed:
(3) Where any land is surveyed Government may by notification in the Official Gazette direct that the assessment on the area of such land as determined by such survey shall be levied at the late at which the assessment is fixed by Mamlatdar under Clause (b) of Sub-section (1) of Section 30 from such date and in such manner as may be specified in such notification and notwithstanding anything contained in this Act the term assessment shall be construed accordingly in respect of payment of compensation to be made under Section 33 after the date specified in such notification.
(4) Nothing contained in Sub-section (3) or in any notification issued thereunder shall affect-
(a) the land allotted to a Girasdar as respects its area or
(b) the land in respect of which an occupancy certificate has been issued to a tenant as respects its area;
Before the date specified in the notification issued under Sub-section (3).
(5) Where the amount of six times the assessment is paid by a tenant in respect of such land and where after survey it is found that the land in respect of such payment was actually less than that declared by the Girasdar the amount so overpaid by the tenant shall be refunded to such tenant and if it is found that such land actually more than that declared by the Girasdar then the tenant shall be liable to pay to the Girasdar the difference on account of the larger area.
Provided that where the assessment so calculated is manifestly unfair the Government may modify it keeping in view the above principle.
4. Rules were framed entitled Saurashtra Land Reforms Rules 1951 relating to the enquiry to be held by the Mamlatdar and the procedure to be followed by him in the matter of determination of the assessment of any land under Section 44. It is not necessary to refer to any of those rules since no argument before us has turned of the same.
5. The Act was amended by the amending Act XXXV of 1954 whereby Sub-sections (3) and (5) were added to Section 44. Of this more hereafter. There was a further amendment of Section 44(3) whereby the words and settle in Section 44(3) were omitted.
6. On 12th December 1958 the State of Bombay promulgated a Notification in exercise of the powers conferred on it by Sub-section (3) of Section 44. That notification is as under:
Where as the lands in villages specified in the Schedule appended hereto which the Saurashtra Land Reforms Act 1951 (Saurashtra Act No. XXV of 1951) applies are surveyed;
Now therefore in exercise of the powers conferred by Sub-section (3) of Section 44 of the Saurashtra Land Reforms Act 1951 (Saurashtra Act XXV 1951 the Government of Bombay hereby directs (1) that the assessment on the area of each such lands as determined by such survey shall from the 1st August 1955 be levied at the rate at which the assessment is fixed by the Mamlatdar under Clause (b) of Sub-section (1) of Section 30 of the said Act and (2) that such assessment shall be levied of agricultural manner in which land revenue in respect of agricultural land is levied and recovered in accordance with the provisions of the Bombay Land Revenue Code as adopted and applied to Saurashtra and the rules thereunder.
It is evident and not disputable that the Notification promulgated on 12 December 1958 lays down that the assessment on the lands in specified villages including lands of tenants who were Chav-Hak holders was to be levied at the rate mentioned therein from 1st August 1955. It is equally evident that the Notification was promulgated after the survey of the land has been completed. There was some suggestion that there might have been a survey of some of the lands after 1st August 1955 but there is nothing on the record to show that the survey of any land took place after 1st August 1955 nor has any such contention been seriously raised before us on behalf of the petitioners.
7. It has been argued before us by Learned Counsel for the petitioners in this petition and also in petition No. 45 of 1960 in which identical contentions are raised that Section 44(3) of the Act does not empower the Government to direct that the assessment on the area of the land determined by the survey shall be levied from any date prior to the promulgation of the Notification. Considerable stress is laid on the words shall be levied in Sub-section (3). It is urged that the assessment could be levied on the area as surveyed only from the date of the Notification and not from any earlier date and the Government having done so by the Notification acted in excess of its powers. In substance and in effect we are asked to read the sub-section in a limitative manner and prospectively. There was a feeble suggestion at one stage of the argument that Section 44(3) itself was ultra vires the Constitution as it enacted a Provision which had retrospective operation. That was however not persisted in and the argument before us has principally centered round the point that the Notification operates retrospectively and is on that ground ultra vires the powers of the State Government.
8. At first blush this argument of retroactivity may seem rather attractive but loses all force when one has regard to the scheme and object of the provisions of the Act relating to assessment and particularly to the provisions of Section 44 itself which expressly deal with the topic of assessment.
9. The learned Advocate General has taken us through a number of sections of the Act for the purpose of pointing out the scheme of the Act and also the object of the relevant provisions relating to assessment. We shall mention only some of those sections. Section 10 relates to land revenue payable by a Girasdar and lays down that Girasdar shall in respect of any land for which rent is payable to him by a tenant be liable to pay to the Government as land revenue a sum equal to twelve and half per cent of the assessment on that land. Section 28(1) relates to acquisition of occupancy rights by tenants and rules that: 'Subject to the provisions contained in Chapter IV of this Act a tenant shall at any time be entitled to acquire occupancy rights in his holding on payment of such amount as shall be equal to six times the assessment payable in respect of the agricultural land included in such holding and may apply in the prescribed form to the Mamlatdar for acquiring such right'. The proviso to the sub-section lays down that: 'Provided that a tenant who has acquired chav or buta hak shall acquire such rights without any payment'. Section 28(2) relates to an application to be made under Section 28(1) and prescribes the particulars to be given in the application. Clause (f) of Sub-section (2) of Section 28 requires a tenant to state to state in his application whether he holds 'Chav-Hak' or Buta Hak in respect of any land and if so the area of such land. A tenant of a holding having Chav or 'Buta-Hak' also had to make an application to the Mamlatdar as required by Section 21 and state therein the area of his holding. Section 29 relates to enquiry in the matter of these applications by the Mamlatdar and Section 30 relates to issuance of occupancy certificate to tenants. Sub-section (1) of Section 30 rules that the Mamlatdar may, after making such enquiry as may be deemed necessary pass an order specifying therein the holding or the part thereof in respect of which the tenant may be declared to be an occupant i.e. in respect of his occupancy holding and inter-alia the assessment on such occupancy holding. This assessment obviously could be on the footing of the area mentioned by the tenant himself in his application under Section 28 for the purpose of acquisition of occupancy rights. The lands had not been surveyed and the area for the purpose of assessment had to be taken from the declaration made by the tenant himself since the survey under the Act was to take place later in accordance with the provisions of the Act. Section 31 relates to the consequences of issuance of an occupancy certificate. It rules inter-alia that the tenant shall in respect of the holding become an occupant holding directly from the State and shall have all the rights and obligations of an occupant under the Act and under the Code in respect of the holding. Section 33 relates to payment of compensation. We do not here refer to any provisions of that section since as we have already mentioned the petitioners being 'Chav-Hak' holders had not to pay any compensation. Section 36 enacts that on payment by the Government of compensation the rights of the Girasdar were to become extinguished. Since we are examining the scheme of the provision of the Act relating to assessment we may also mention that Section 39 relates to Girasdars rights vis-a-vis the State as occupants of certain lands in respect of which they were entitled to occupancy certificate. That was in respect of Gharkhed lands. Section 2(14) defines Gharkhed to mean 'any land reserved by or allotted to a Girasdar before the 20th May 1950 for being cultivated personally and in his personal cultivation'.
A further argument urged before us by Mr. Nanavati in assailing the constitutionality of provisions of Section 44(3) is that there is discrimination created and for which discrimination there is no reasonable basis.
10. The argument of the learned Advocate General has proceeded that when one has regard to the relevant provisions of the Act it becomes clear that in Section 44 the Legislature has enacted for determination of assessment which legislation cannot really be said to operate retrospectively. Reliance has been placed on Sub-section (1) for the purpose of showing that until the village in which the land of a tenant is situated is surveyed and settled assessment is to have the meaning therein given. Then there is the stage of enquiry to be held by the Mamlatdar in the prescribed manner and the Mamlatdar has to fix the assessment on the land of the tenant. All this it has been urged would be prior to the survey of the land. Sub-section (3) which is the crucial provision speaks that the assessment 'shall be levied', but that, it is argued is because the assessment is to be levied after the land is surveyed. The argument ran that such being the position some date had of necessity to be fixed for the purpose of levy of assessment. The levy could be after the survey of all the land was completed and the survey was bound to take considerable time. In such circumstances it was felt by the Legislature that the Government should have the power to levy the assessment from such date and in such manner as may be specified in the Notification and the power could be validly exercised so long as the date fixed was after the completion of the survey. In such a case it would not be quite accurate to say that the Notification has operated in any retrospective manner and to the prejudice of the tenant by subjecting him 10 any additional levy of assessment. Reliance has also been placed by Learned Counsel on Sub-section (4) and in particular on the words before the date specified in that sub-section. Reference has also been made to Sub-section (5) for the purpose of showing that it was realised that the area as ascertained after the survey would in some cases vary from that mentioned in the application for occupancy certificate and the amount of compensation which was to be six times the assessment would ultimately have to depend on the area as actually ascertained as a result of the survey. There is in our opinion considerable force in the argument advanced on behalf of the State.
11. The argument on the other hand is that we are dealing with a taxing provision and the provision must therefore be strictly construed that is in favour of the citizen and against the taxing authority where a provision is capable of more than one meaning. Of course we should prefer that which would favour the subject. This position has been questioned by the learned Advocate General and it is urged that the provision in Sub-section (3) cannot be regarded as a taxing enactment. In our opinion it makes no difference whether the provision can be strictly described as a taxing provision or not. In any case it deals with the levy of an assessment and we would prefer to interpret it rather strictly than otherwise. There is also in our judgment the element of some retroactive operation in the Notification and that is a factor which must be borne in mind by the Court.
12. Every statute it has been said which takes away or impairs vested rights acquired under existing laws or creates a new obligation or imposes a new duty or touches a new disability in respect of transactions already passed must be presumed out of respect to the Legislature to be intended not to have retrospective operation. Any such law is offensive to the principle of sound and just legislation. This rule embodies the maxim omins nova constitution futures foreman imponere debet non practeretes. We would lean in favour of prospective operation as against any retrospective effect being given to the Notification. This does not however mean that a provision of the nature under consideration must inevitably have prospective operation. Our task being one of ascertainment of the intention of the law-maker as expressed we have to ascertain that intention primarily from the language itself of the enactment and were there is available intrinsic evidence of that intention we must preferable be guided by the same. We make this observation at this stage because in our opinion there is some such intrinsic evidence furnished by Sub-section (4) of the section.
13 We must look at the general scope and purview of the Act and also bear in mind the object of it albeit to be gathered in a manner consonant with established canons of construction. We must have regard to the remedy if any created by the section and also to the position as to assessment as it abided and to the change or modification sought to be made therein by the law-maker. The assessment mentioned in the occupancy certificate in case of the petitioners before us as in case of all other tenants who applied for occupancy certificate quod area could only be on the footing of what was stated by the tenants in their application There would be no justification for assessment on the footing of that area once the land was actually surveyed and it was precisely for that reason that in our judgment the Legislature authorize the Government by sub-sec. 3 of Section 44 to direct that the assessment shall be levied from a specified date after there was survey of the land. The language of Section 44(3) read in the background which we have already summarized and the context of the relevant provisions relating to assessment which we have mentioned leads in our judgment to the conclusion that the Legislature has in subsection (3) of Section 44 authorized the State Government to direct that the assessment could be levied from a date prior to the date of the Notification provided of course that the date was subsequent to the completion of the survey. The present contention of the petitioner must therefore be negatived.
14. The constitutionality of Section 44(3) has been assailed before us on the ground that it is ultra vires the Legislature. It is said that by this section the legislature has given unlimited power to the Government and the power is capable of arbitrary exercise. It is also said that the power has been granted without any rule of guidance and any rule regulating the same and is therefore in violation of the constitutional guarantee in Article 14. It is also said that Sub-section (3) left the fixing of the date to the unfettered discretion to the State Government. We do not think the argument to be tenable if regard is had to the setting in which Sub-section (3) to Section 44 has been enacted. We need not repeat what we have already said which examining the principal argument urged on behalf of the petitioner and it will suffice to say that we are unable to read anything in the sub-section which can be said to bring the impugned provision within the scope of the doctrine of conferment of unlimited and unfettered powers and which powers can be said to be such as permit arbitrary and capricious exercise of the same. The present contention urged on behalf of the petitioner must also be negatived.
15. The constitutionality of Section 44(3) has also been assailed be fore us on the ground that the survey included both Khalsa and non Khalsa lands but the Notification does not affect Khalsa lands. It is urged that there is no reasonable basis for this discrimination and on that ground the section is ultra vires the Constitution. This contention has not been raised in the present petition but it has been raised in the Special Civil Application No. 45 of 1960. It is true that the Notification does not embrace occupants of Khalsa villages of which there was a survey. But we do not agree that the fact that Khalsa villages has also been surveyed results in any unreasonable classification. The occupants of Khalsa villages became liable to pay assessment as and when their villages were surveyed and those villages are not shown in the schedule annexed to the Notification to the Land Reforms Act does not apply to the occupants of Khalsa villages.
16. It is lastly urged on behalf of the petitioner that discrimination has resulted between tenants and Girasdars. It is true that three categories of occupants have arisen as a result of the legislation. We have already mentioned that persons who are tenants of Khalsa lands are not governed by the Land Reforms Act. The Girasdars have been occupancy holders in respect of certain lands. They have to pay assessment on the land allotted to them. The position of tenants has already been discussed by us in giving a resume of the scheme of the Act. Both the tenants of the Girasdars as well as Girasdars in respect of the lands reserved or allotted to them become occupants under the provisions contained in the Act. From the very nature of things and the incidents of their respective titles there was bound to be some difference between the position of the tenants and that of the Girasdars. Obviously they could not be equated. That being the position we cannot see how it could have been possible to equate the tenant and the Girasdars in every respect. The differentiation that is pointed out to us is natural and must be regarded as rational classification. The present contention also must therefore be negatived.
17. These are all the questions which have been canvassed before us in this petition as well as in Special Civil Application No. 45 of 1960.
18. In the result the petition fails and will be dismissed with costs. Rule discharged. The costs of respondent No 1 is fixed at Rs. 250/-. The costs of respondents Nos. 2 and 3 is fixed at Rs. 100/- in one set.