Akbar S. Sarela, J.
1. The short question arising for determination in this second appeal is whether the plaintiff-respondent was liable to be assessed for non-Gharkhed in his holding at the rate of 12 1/2 % of the total assessment of those lands. The plaintiff's case was that he was not so liable. The contention of the State-defendant was that he was so liable at that rate. Both the lower courts have found in favour of the plaintiff-respondent. The defendant-State has come in appeal.
2. The facts bearing on this question are few and are not in dispute. The plaintiff-respondent was the holder of what is known as Dhank Jagir, which was a Jagir under the Gondal State. That State integrated with State of Saurashtra and became part of the territory of the State of Saurashtra. The State of Saurashtra after it was formed immediately undertook a number of legislative measures for agrarian reform and one of such measures was the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949, popularly known as Gharkhed Ordinance (hereinafter to be referred to as the Ordinance). In that Ordinance the lands held by the land holders are dealt with under two broad heads namely Gharkhed and non-Gharkhed. Both these classes of land are made liable under Section 22 of the Ordinance for payment of land revenue, Section 21 of the Ordinance which calls for construction in this appeal lays down the extent of that liability for land revenue. It reads as under:
21. Assessment over land: In any estate to which this Ordinance applies, land revenue payable shall be the aggregate of the assessment computed in the following manner:
(a) in respect of Gharkhed land, if any, at the rate of four annas per acre of such land;
(b) in respect of non-Gharkhed land, 121% of the total assessment thereof. The assessment on non-Gharkhed land shall be determined in accordance with the rules made by Government from time to time.
The defendant-State sought to assess the plaintiff's holding at 12 1/2% under Clause (b) of Section 21 in respect of certain lands in that holding on the footing that they were non-Gharkhed land. The plaintiff disputed that liability. The lower appellate court has held, mainly relying on a decision of the Saurasthra High Court to which reference will be made presently, that till the Gharkhed lands are allotted to the plaintiff under the provisions of the Ordinance, no such liability under Clause (b) of Section 21 can arise. The lower appellate court gave the plaintiff a declaration in the following terms:
The decree of the trial court is confirmed, subject to the modification that the plaintiff's lands would not be liable to assessment under Clause (b) of Section 21 of the Ordinance No. 41 of 1949, till such time as Gharkhed lands are allotted to him, or till the Ordinance continued in force, whichever is earlier, and that the defendant would be restrained from so recovering thereunder. His right to challenge his liability under the Act 25 of 1951 shall, however, remain open.
The ground of the lower appellate court's decision is that there can be no non-Gharkhed, which is the expression used in Clause (b) of Section 21, till after the Gharkhed is determined and allotted to the land holder because any land in the holding is liable to be allotted as Gharkhed and as in this case no allotment had been done, no particular land in the holding can be held to be liable to assessment under Clause (b) as non-Gharkhed for it may well happen that in the final allotment, it may be treated as Gharkhed in which case its liability would be under Clause (b) which is much less. Reliance was placed by the learned Judge on the following passage from the unreported judgment of the Saurashtra High Court in Civil Miscellaneous Application No. 30 of 1951 (Patel Bhikha Moolji v. D.S. Champraj Vala and Anr.) decided on 11th October 1951. Their Lordships were construing Section 18 of the Ordinance and they said:
Gharkhed land is defined by Section 2(h) of the Ordinance as land reserved by a landholder for cultivating it personally whilst Section 16 says that all lands 'other than Gharkhed land' shall be considered as non-Gharkhed land. This means that before any land can be considered as-non-Gharkhed land under the Ordinance it must be shown that it is 'other than Gharkhed land', ;'. e., until the landlord is allotted his full quota of Gharkhed land. Only after this is done that the landlord is finally debarred from claiming any portion of the remaining land of Gharkhed and only such remaining land can be properly considered as 'other than Gharkhed land'. Until this is done every portion of the land on his estate continues to be liable to be claimed as Gharkhed land and how can land which continues to be so liable by him be definitely regarded as 'other than Gharkhed land'. The condition for coming into existence of non-Gharkhed land is thus setting apart in the first instance the full quota of Gharkhed land for the landlord. As the opponent No. 1 has not been allotted Gharkhed land for no default of his own, no portion of the land in his estate can be termed as non-Gharkhed land, and therefore, Section 18(1) cannot apply to it.
The learned Assistant Government Pleader argues that the decision of the Saurashtra High Court does not apply firstly because it relates to Section 18 of the Ordinance and secondly because here the question of allotment of Gharkhed land is not shown to have arisen because there is nothing to show that the landlord made any reservation for Gharkhed.
3. To appreciate the real point in controversy it is necessary to look at the relevant provisions of the Ordinance. The first Chapter is preliminary and contains definitions. Clause (h) of Section 2 defines Gharkhed as under:
Gharkhed' means land reserved by a landholder for cultivating personally; provided that the land shall continue to be Gharkhed land even if a landholder allows the same to be cultivated by the tenant cultivating the land on 1st January 1948.
It is clear from the definition that for any land to be Gharkhed it shall be reserved by a land holder for cultivating personlly. The question then is how is the reservation to be made. This appears to have been provided for in Chapter II which contains general provisions regarding Gharkhed land. Section 5 mentions the different land holders who are entitled to reserve land for Gharkhed. Section 8 lays down the extent of the land from his holding which the holder can reserve for himself for cultivation. There is a ratio laid down of the total of the land in his holding. Section 6 which is material provides for the manner in which reservation is to be made. Sub-section (1) of that section which is relevant reads as under:
(1)Every land-holder who under Section 5 is entitled to Gharkhed land, may terminate the tenancy of his tenant by giving him one year's notice in writing stating therein that the land-holder bona fide requires the land for cultivating the same personally.
Therefore, reservation is to be made by giving one year's notice to the tenant in occupation stating that the land-holder requires the land for his personal cultivation. On receipt of such notice the tenant may hand over the land in respect of which the notice is given in which case nothing further remains to be done, so long as the reservation dose not exceed the limits laid down under Section 8. But if the tenant does not hand over the land then Section 7 provides for the procedure for taking possession of the land covered by the notice. Sub-section (1) of Section 7 which is material reads as under:
(1) On the expiry of period of such notice, if a tenant fails to hand over possession of the land, tenancy of which is terminated under Section 6, to his landholder, the landholder may apply to the Mamlatdar within the limits of whose jurisdiction his estate or major portion of his estate is situated for the settlement of his Gharkhed land.
The other sub-sections of that section relate to the details of the inquiry to be held by the Mamlatdar on such application and also provide for the contents of the order of settlement of Gharkhed land to be passed by the Mamlatdar. It is not necessary to refer to the other provisions of this Chapter for the purposes of this case.
4. Chapter III which contains Section 16 to 20 contains provisions relating to non-Gharkhed land. Section 16 which has been referred to in the Saurashtra High Court judgment provides that all lands other than Gharkhed lands shall be considered non-Gharkhed lands. Section 18 relates to fixation of rent payable by a tenant of non-Gharkhed land to the land-holder. Under Section 19 the provisions of the Bombay Land Revenue Code are made applicable subject to alterations and modifications. Section 20 of that Chapter is not material. Then comes Chapter IV which relates to liability for payment of land revenue and contains sees. 21 and 22. Section 22 as earlier pointed out broadly lays down that every land-holder is liable to land revenue to Government and Section 21 determines the extent of that liability. That section has been earlier reproduced.
5. It is clear therefore that if the liability for payment of land revenue is to be under Clause (a) of Section 21, the land in respect of which that liability arises must be non-Gharkhed land. The non-Gharkhed land is, according to Section 16, a land other than Gharkhed land. Gharkhed, according to Section 2(h), means land reserved by a land holder for cultivating personally. The reservation in respect of land in the holding not in the possession of the land holder is to be made in accordance with Section 7. Till such reservation is made it is obvious that no land in the holding which is not in the personal cultivation of the landholder would be Gharkhed land within the meaning of that expression used in the Ordinance. Therefore, if no reservation is made all the land in the holding in the cultivation of the tenants would be non-Gharkhed land. This conclusion is not inconsistent with the observations of the Saurashtra High Court earlier referred to. Although all the facts of that case are not clear from the judgment in that case, a copy of which has been shown to me, it is clear from some of the statements made in that case, that the reservation was made by the landlord and thereafter an application had been made by him to the Mamlatdar for allotment. The application obviously must have been under Section 7 of the Ordinance. Allotment however is a process subsequent to reservation. Reservation is not equivalent to allotment or vice-versa. The reservation is made by a notice under Section 7. If a notice is given in accordance with that section reservation is made in respect of the land covered by that notice and that land is liable to be allotted as Gharkhed land under Section 7. Till such an allotment is made it would be right to say that none of the lands in respect of which such a reservation is made can be said to be non-Gharkhed land. But if no reservation is made at all there will be no Gharkhed as defined by the Ordinance and consequently the land under cultivation of the tenants in the holding would be liable to the assessment as non-Gharkhed. The lower appellate court appears to have read the Saurashtra High Court judgment earlier referred to, as applying to all situations whether or not reservation has been made because the lower appellate court has not at all applied its mind to the question whether reservation has in fact been made in this case. That view of the lower appellate court is, for the reasons I have just indicated, not correct.
6. The construction which I am inclined to place on Section 21 of the Ordinance is borne out by a few other considerations to which I shall now refer. Firstly, it will be noticed that Clause (a) of Section 21 of the Ordinance speaks of 'Gharkhed if any' and it thereby contemplates a situation where the land holder has made no move for reservation or intends to make none. If there is no reservation there would be no Gharkhed and that explains the expression 'if any'. In that case all the land cultivated by the tenant would be non-Gharkhed. Secondly, it may be noticed that there is no provision either in the Ordinance or in the Rules made thereunder for any period of time during which reservation shall be made. It is, therefore, open to the land holder to make a reservation at any time. If the view which found favour with the lower appellate court were to be accepted the liability for assessment under Clause (b) would never arise. Such a liability would be entirely at the option of the land-holder. Even a liability under Clause (a) would not arise for until a reservation is made there would be no Gharkhed. This is therefore the second reason in favour of the construction I am inclined to place on Section 21. The third reason is that most of the provisions of the Ordinance were repealed by the Saurashtra Land Reforms Act, 1951 (hereinafter to be referred to as the Act) which came into force on 1-9-1951. The said Act contains provisions which are consistent with the construction placed on Section 21 of the Ordinance. The Act contains no provisions for reservation as are contained in the Ordinance but makes provision for an application for allotment by the land holder and also makes provision for an application for occupancy rights by the tenant. On an inquiry on those applications, allotments and occupancy rights, as the case may be, are made or granted. Section 2(14) of the Act defines Gharkhed. The relevant portion of that definition reads as under:
Gharkhed' means any land reserved by, or allotted to, a Girasdar before the 20th May 1950, for being cultivated personally, and in his personal cultivation.
There are then provisos with which we are not concerned. It will be noticed, therefore, that Gharkhed as used in this Act has reference to land reserved by or allotted to a Girasdar before 20th May 1950 for being cultivated personally and this obviously has reference to sees. 6 and 7 of the Ordinance. Section 7 of the Ordinance, which relates to allotment, cannot come into operation till there has been reservation under Section 6. Therefore, the provisions of the Act appear to proceed on the assumption that the land which is not already reserved or allotted is not Gharkhed. Pending applications are saved by the proviso to that section.
Therefore, these considerations also support the construction I have placed on Section 21.
7. This being the position the decree of the lower appellate court would be right if reservation has been made by the landholder under Section 6 of the Ordinance. 1 asked Mr. Mankad who argued the appeal on behalf of the respondent whether reservation was made. Neither from the pleadings nor from the evidence could he establish that any such reservation was made. He referred to paras 17 and 18 of the plaint where the only averment made was that the plaintiff had not till the filing of the suit received his Gharkhed. Those averments do not show that any reservation was made under the provisions of the Ordinance. He then invited my attention to the deposition of the plaintiff's manager and power of attorney Jasvantsingh (Ex. 4), who, in para 7 of his deposition stated that the plaintiff had not yet received his Gharkhed and that a case was going on and was pending before the Deputy Collector. This only proves that a case was pending. The nature of the case, however, becomes clear from his statement in cross-examination whether he explained what that case was and that explanation shows that the case is one instituted under the Saurashtra Land Reforms Act on the basis that he is a 'A' Class Girasdar. Therefore, the pending case refers presumably to an application for allotment made by the plaintiff under the Saurashtra Land Reforms Act. Such an application made under that Act, is not a reservation under the Ordinance. In the absence of any such reservation the land in his holding in the cultivation of tenants can be classed as non-Gharkhed land and would be liable to be assessed under Clause (b) of Section 21 of the Ordinance.
This was the only point argued in appeal and the plaintiff having failed on that point, the appeal must be allowed and the suit dismissed.