Skip to content


Rinarbai Rambhad and ors. Vs. State of Bombay (Now the State of Gujarat) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtGujarat High Court
Decided On
Case NumberSecond Appeal Nos. 346 and 347 of 1960
Judge
Reported inAIR1962Guj18; (1961)2GLR594
ActsTenancy Laws; Bomaby Land Tenures Abolition (Recovery of Records) Act, 1953 - Sections 2, 3 and 4; Constitution of India - Articles 19(1), 31 and 31(2)
AppellantRinarbai Rambhad and ors.
RespondentState of Bombay (Now the State of Gujarat) and ors.
Appellant Advocate J.R. Nanavati, Adv.
Respondent Advocate B.R. Sompura, Adv.
DispositionAppeal dismissed
Cases ReferredArmy v. Dalziel
Excerpt:
.....act notice issued to appellants to deliver to collector or officer appointed in that behalf all lands records - appellant contended calling upon him to deliver records would amount to acquisition or deprivation within meaning of article 19 (1) (g) - under act no disturbance to right of property in records of holders - nothing in act to show that after delivering records to collector it would not be available to appellants - object of legislation is to preserve records - held, appellant's contention that impugned statue unconstitutional and violative of article 19 (1) (g) not maintainable. - - nanavati argued that the state was not entitled to call upon the appellants to deliver up these records as act l of 1953 was not within the legislative competence of the state legislature..........up to the collector or to an officer appointed by the state government in that behalf all the land records relating to these villages and lands maintained by them so far. mr. nanavati argued that the state was not entitled to call upon the appellants to deliver up these records as act l of 1953 was not within the legislative competence of the state legislature and that even if it were to be so, calling upon the appellants to deliver up the records would amount to acquisition or deprivation, within the meaning of article 31 of the constitution and would he contrary to the fundamental right guaranteed under article 19(1)(g). such deprivation would be bad in law as it is sought to be made without any compensation payable to the appellants under the act or otherwise.2. section 2 of the.....
Judgment:

J.M. Shelat, J.

1. Mr. Nanavati, however, pointed out that the State Legislature has also enacted the Bombay Land Tenures Abolition (Recovery of records) Act, 1953, being Act L of 1953, under which a notice has been issued to the appellants to deliver up to the Collector or to an officer appointed by the State Government in that behalf all the land records relating to these villages and lands maintained by them so far. Mr. Nanavati argued that the State was not entitled to call upon the appellants to deliver up these records as Act L of 1953 was not within the legislative competence of the State Legislature and that even if it were to be so, calling upon the appellants to deliver up the records would amount to acquisition or deprivation, within the meaning of Article 31 of the Constitution and would he contrary to the fundamental right guaranteed under Article 19(1)(g). Such deprivation would be bad in law as it is sought to be made without any compensation payable to the appellants under the Act or Otherwise.

2. Section 2 of the Bombay Act, L of 1953, defines 'holder' as including 'Mulgirasia as defined or referred to in the Bombay Merged Territories (Baroda Mulgiras Tenure Abolition) Act of 1953 an& also includes a person who for the time being is in possession of the land: records on behalf of such holder. Clause (3) of section 2 defines land records' as moaning records maintained by a holder in respect of the land or village held by him at any time before the abolition of the tenure on which such land or village, was field. Section 3 then provides that it shall be the duty of every holder to deliver, in the prescribed manner, within two months from such date as the State Government may by notification in the Official Gazette specify in that behalf, all land records in his possession to the Collector or to such officer as may be appointed by the State Government in that behalf. Lastly, section 4 provides that if the Collector Or the officer appointed under Section 3 has reason to believe that anyholder is not likely to deliver the land records as required by section 3 or is likely to destroy them or; tamper with them, he may, for the purpose of -recovering such records, issue a search warrant and exercise all such powers with respect thereto as may be lawfully exercised by a Magistrate under the provisions of Chapter VII of the Code of Criminal Procedure.

3. The object of the Legislature in enacting this Act presumably was that on the resumption of lands and villages under any one of the Land Tenures Abolition Acts, the holders thereof would cease to have any rights over such lands except as ordinary occupants under the Land Revenue Code, and, therefore, it would be expedient to have the land records in respect of such lands and villages in the custody of the State Government because it would be the State Government who on or after the resumption would have to deal with such lands and villages and- also the persons who henceforth would hold those lands or villages as occupants or otherwise. The preamble of the Act provides the key to the object for which these statutes were enacted. As the preamble states it was expedient to provide for taking over records maintained by the holders of lands or villages held on tenures which have been abolished by various Land Tenures Abolition Acts, and hence this particular Act was enacted.

4. On the contentions raised by Mr. Nanavati, the first question that falls for determination is :

'whether the Act is within the legislative competence of the State Legislature?'

5. Mr. Nanavati argued that it did not fall within any of the items in List II in the Seventh Schedule of the Constitution. The learned Assistant , Government Pleader referred however -to two items in. that List, viz., items 18 and 45. Item 18 deals with land and runs as follows :

'Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization'.

6. It is obvious that the legislation as regards land records would not fall within the scope of item 18. The learned Assistant Government Pleader also did not lay much stress on item 18 as being the item under which the impugned Act would fall, lie however laid considerable stress on item 45 which deals with land revenue and which runs as follows :

'Land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenues'.

7. The land records, the maintenance of which is included in the expression land revenue' in item 45 would not merely mean title deeds in respect of the lands and other allied documents pertaining to lands held by the holder thereof. The expression 'land records' would also include all records showing the management of the lands, the manner in which they have been dealt with in the past and the rights of the holders as also of the other persons to whom they have been let out Or in whose favour rights have been created in the management of these lands or the persons who have incurred obligations,liabilities etc. While enacting the impugned act, the Legislature seems to have thought that once the lands were resumed by the Stale it would be expedient and also in the public interest that the State should know how these lands and villages have been dealt with in the past by the holders thereof and whether rights in respect thereof have been created in the other persons and liabilities have been incurred. The term 'land) records' as used in item 45 of List II would thus include 'land records' as defense in Section 2 (iii) of the impugned Act. The expression 'maintenance of land records' as used in item 45 must also mean and include not only maintenance of records after resumption of these lands and villages but also the records maintained before such resumption. In other words, it would be within the scope of item 45 of List II to enact the law relating to records showing how the lands have been dealt with in the past, what are the rights and liabilities, if any, pertaining to these, lands, how the records are to be maintained and preserved! and what is still more important, where they should be kept and in whose custody they should be lodged. The expression 'maintenance of land records' would mean not only the act of maintaining them but all things incidental to the keeping and maintenance of such land records. In my opinion, the impugned Act would thus fall within item 45 of List II which is wide enough to include the maintenance of title deeds, other documents and records relating to lands resumed by the State, kept both before and1 after the enactment of the various statutes under which the! lands are resumed by the State.

8. The next question' is whether Section 3 of the impugned Act amounts to acquisition or deprivation of the property of the appellants in the land records belonging to and maintained by them. IE must be observed in this connection that section 3 provides only for the delivery of the laud records to the Collector or to such officer as may in that behalf be appointed by the State Government. There is no indication either in that section or any other provisions of the Act which would show that delivering up of these land records is intended to amount to deprivation of the property in the land records of the holders or Other persons mentioned in that Act. But it was contended by Mr, Nanavati that these land records are movable properties, that delivering up of these documents would amount to deprivation of possession and in the case of movable properties where possession which is the most important characteristic of such property is deprived of, it must mean acquisition within the meaning of Article 31 of the Constitution. Reliance was placed on the decision of the Supreme Court in the State of West Bengal v. Subodh Gopal Bose, 1954 SCR 587 : (AIR 1954 SC 92), where Patanjali Sastri, C. J., has observed in connection with the concept of acquisition that when the State chooses to exercise such power, it creates title in itself rather than . acquire it from the owner, the nature and extent of the title thus created denending on the purpose and duration of the use to which the property appropriated is intended to be put us disclosed in the law authorising its acquisition. No formula of vesting is -necessary. In the case of movable property no formal transfer or vesting of title apart from seizing itis contemplated. Mr. Nanavati relied upon these observations in support of his contention! that the and records being movable properties, they can besaid to have been acquired from their owner viewif there was no formal vesting thereof in the Slateand even if there was no provision of a formal transfer in the statute in question. Its no doubt truethat in the case of movable property, the seizure or 'the taking over of the possession of such property even without any formal provision for its transfer or vesting in the State may in some cases become acquisition within the meaning of Article 31 of the Constitution. But whether the transfer of possession of a particular property or a change in the custody of 'that properly amounts to acquisition or not depends upon' the facts and circumstances of each ease. This 'was laid down by the Supreme Court in Dwarkadas :Shrinivas of Bombay v. The Sholapur Spinning and 'Weaving Co. Ltd., 1954 SCR 674 : (AIR 1954 SC 119). The question that arose there was whether by the Ordinance impugned there, the State hadacquired or deprived the Sholapur Spinning and 'Weaving Mills Co. Ltd. of its property. It was con-'tended amongst other things that the Ordinanceamounted to a mere regulative and not an acquisitive enactment and therefore could not be challenged oil the ground of unconstitutionally or in avidity. That contention was rejected by their Lord-'ships who held that by promulgating the Ordinance the Government had no; merely taken over thesuperintendence of the affairs of the Company but had in effect and substance taken over the undertaking itself. They pointed out that in the ease before them practically all the incidents of owner-'ship had been taken over by the State and nothing was left to the Company but the mere husk of title and therefore the impugned statute had overstepped the limits of legitimate social control legislation and had 'infringed the fundamental right of the Company guaranteed to it under Article 31(2) of the Constitution and was therefore, unconstitutional. At page 685 of the report (SCR) : (at p. 125 of AIR), after analysing the various provisions of the Ordinance it was observed that the result of the Ordin-aone was that all the properties and effects of the ''Company passed into the hands of persons nominated by the Central Government who were not mem-'bers of the Company or its shareholders, or in anyway connected with it, and who were merely the 'creatures of the Central Government or its dummies. 'The combined effect of the provisions of Sections 3. 4 and 12 of that Ordinance was that the Central Government became' vested with the possession, control and management of the property and effects of the Company and the normal function of the Company wider its articles and the Indian Companies Act came to an end. The shareholders' most valuable 'right to appoint directors to manage the affairs of the Company and be in possession of its property and effect was also taken away. Resolutions passed by them lost all vigour and became subject to theveto of the Central Government. Again at page .690 (of SHR) : fat p. 125 of AIR), it was observed that the effect of the Ordinance was that the Company was debarred from carrying on its business in themanner and according to the terms of its charter. The Ordinance had also the effect of overriding thedirectors, depriving the shareholders of their legal rights and privileges and completely putting an end to the contract of the managing agents. Without there being any vacancy in the number of directors new directors stepped in ' and old directors and managing agents stood dismissed and the exercise of (my power by them under the articles was subject to heavy penalties. In the result, their Lordships held that practically all the incidents of ownership had bee,n taken! over by the State and all that had been left with the Company was mere proper ownership. Mr. Nanrwati relied upon the approval by the Supreme Court of certain observations in Minister of State for the Army v. Dalziel, (1914) 68 CLR 261. There Rich, J. representing the majority opinion stated,

'it would in my opinion, be wholly inconsistent with the language of the placation to hold that whilst preventing the Legislature from authorizing the acquisition of a citizen's full title except upon just terms, it leaves it open to the Legislature to seize possession and enjoy the full fruits of possession, indefinitely, on any terms it chooses or upon no terms at all.'

From these observations it Was contended by Mr. Nanavati that the seizure of possession of movable property for an indefinite period and upon no terms at all would amount to acquisition of the property and there being no provision for compensation for such acquisition the provision to that effect wouldid be unconstitutional and invalid. It must however be emphasised that the Supreme Court of New South Wales in that decision was dealing with a case where a tenant of certain premises had been deprived of his possession and it was in that connection that the aforesaid observations were made by Rich J. In the case of premises demised to a tenant if possession is taken away it would be true to say that such a tenant is deprived of the right to enjoy the full fruits of possession for an indefinite period and upon no terms at all and that in such circumstances he would retain only the husk of title in such a case deprivation of possession of such demised premises would undoubtedly amount to acquisition without compensation. The test in all such cases as the Supreme Court has stated in the case of Sholapur Spinning and Weaving Co. Ltd., 1954 SCR 674 : (AIR 1934 SC 119). is whether the impugned legislation is regulative or acquisitive. As stated there by Bose J., the possession and acquisition referred to in clause (2) of Article 31 mean the sort of possession and acquisition that amounts to deprivation within the meaning of clause (H. No hard and fast rule can be laid down and each case must depend on its own facts. But if there is substantial derivation, then Clause (2) of Article 31 would be applied.

9. It is in the light of the principles laid down in these decisions that I have to consider whether under the impugned Act there is such a deprivation as would make the case fall within the scope of Article 31. As I have pointed out there is no question under the impugned Act of the property in the land records either being acquired by the State or being deprived of from the owners thereof. The lands and villages in respect of which these records have been maintained so far by theholders thereof have been resumed under separate statutes which are already held valid and constitutional. The land records maintained in respect of such lands by the holders thereof have, therefore, practically no value so far as the appellants are concerned except that in an academic sense they are-properties belonging to the appellants. Unlike the two decisions relied upon by Mr. Nanavati, it is not as if the taking over of the possession of these land records would in any sense deprive the appellants of their right of ownership therein. What section ^ of the impugned Act does is to provide for the maintenance and preservation of these land records nO doubt there is an element of coercion to a certain extent in section 4 of the Act in the sense that it empowers the Collector or the officer appointed by the State Government to issue a search warrant but the statute does not in any way destroy the ownership of the appellants in these documents. It is true that if restricts to a considerable degree the right of the appellants to keep them in their possession but in view of the fact that these are records in respect of lands which are resumed under the several Acts by the State, the provisions of Section 3 amount to a mere change of custody and not of acquisition or deprivation in the same sense as was held in the case of Sholapur Mills.

10. It is not without significance that in item 45, List II of the Seventh Schedule, 'assessment and collection of revenue' have been grouped together with 'the maintenance of land records', survey for revenue purposes and records of rights, and alienation of revenues as included within the expression 'land revenue'. The fact that all these things are included within the expression 'land revenue' shows that the object was to ensure that the work of assessment and collection of revenue which is the main function of land revenue is run properly and smoothly. There is, therefore, a co-relation between the assessment and collection of revenue, survey for revenue purposes and the maintenance of land records. Once the lands in question were resumed by the State, the former holders thereof would have no interest in these lands and consequently in the maintenance of their land records and the preservation thereof. It would, therefore, be in the public interest that such land records should be preserved and maintained, and it is obvious that such a thing could be more properly done if such land records are kept in the custody of the State rather than those individuals who have lost interest in the lands or villages in respect of which such records were kept. Even if, therefore, Section 3 were to be held as a restriction on the fundamental right guaranteed under Article 19(1)(g), it would, in my opinion, be a reasonable restriction.

11. Considering the provisions of the Act as , a whole, the object of the Statute as reflected in its preamble and the nature of the property in question, sections 3 and 4 of the Act are regulative) in their nature rather than acquisitive. Under the Act, there is no disturbance to the right of the property in the records of the holders. There is nothing in the Act to show that even after these records are delivered to the Collector or the other appointed in that behalf, it would not be available to the appellants whenever they require; them.The object of the legislation in question is to preserve these records and the only effect of Sections 3 and 4 of the statute in question is to change the custody, that is to say, from the holders to the State. In this view, the contentions raised by Mr. Nanavati that the impugned Statute is unconstitutional or invalid as being in violation of either Article 19(1)(g) or Article 31, cannot be sustained.

12. The appeals therefore fail and are dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //