SAYED REHMANMIYA MUSTAFAMIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants in all these appeals were holders of barkhali tenure in two villages situated in the State of Gujarat in areas which were formerly part of the Part B State of Saurashtra until Saurashtra was merged in the State of Bombay. When the State of Saurashtra was formed, it included areas which were ruled by the Indian Princes in which the tenure systems were different from the systems in British India. In 1948, by Ordinance XXV of 1948 issued by the Raj Pramukh, a number of Acts in force in the Province of Bombay were applied to the State of Saurashtra. That Ordinance was amended by Ordinance XXXIX of 1948. The effect of this amendment was that, under the amended Ordinance XXV of 1948, the Bombay Land Revenue Code V of 1879 (hereinafter referred to as "the Code") with certain adaptations and modifications became applicable to Saurashtra. The main modifications, with which we are concerned, are that Chapters VIII and VIII-A of the Code were not applicable to the State of Saurashtra and Section 52 was made applicable, subject to the omission of the reference to Chapter VIII-A in that section. There was a further amendment of Ordinance XXV of 1948 by Ordinance LXIV of 1949 the result of which was that entry relating to Section 52 of the Code in Ordinance XXV of 1948 was omitted. The consequence of this omission was that Section 52 became applicable to the State of Saurashtra, including the reference to Chapter VIII-A which existed in it in the original Code. Further, Ordinance XXV of 1948 was so amended that Chapters VIII and VIII-A also become applicable to the State of Saurashtra with some slight modifications. Thus, after this ordinance, matters relating to land revenue in the State of Saurashtra were governed by the Bombay Code applied to that State with the modifications laid down in the two Ordinances XXXIX of 1948 and LXIV of 1949 mentioned above.

(2.) In this state of law, the Saurashtra Legislature passed two Acts for abolishing certain tenure rights. One was the Saurashtra Land Reforms Act No. XXV of 1951 (hereinafter referred to as "the Reforms Act") for abolition of Girasdari tenure, and the second was the Saurashtra Barkhali Abolition Act No. XXVI of 1951 (hereinafter referred to as "the Act") for abolition of Barkhali tenure. As a result of the abolition of the rights of the appellants, they became entitled to compensation under Section 18 of the Act which provided for payment of cash annuity calculated on the basis of the assessment in respect of the land in possession of the tenants of the holders of Barkhali tenure. The assessment in respect of the land, on the basis of which compensation was to be calculated and annuity paid, was defined in Section 19 of the Act which reads as follows:-

(3.) In the High Court, various grounds were taken for challenging the validity of the action of the Government in paying annuity on the basis of the Collector's assessment under Section 52 of the Code read with Rule 17 of the Rules and it was urged that the appellants were entitled to continue to receive payment on the basis of the assessment which had been made by the Mamlatdar under Section 19 of the Act. The principal ground which we think has considerable force, was that assessment under Section 19 of the Act has been given a special meaning, and payment has to be made in accordance with the assessment mentioned in Section 19 of the Act and not in accordance with the assessment made by the Collector under Section 52 of the Code. Under Section 19 (1) of the Act, assessment is defined to mean assessment calculated on an arithmetic average of assessment leviable in the surrounding and adjoining khalsa or assessed non khalsa lands or villages which has to be determined by the Mamlatdar after holding an enquiry under Section 19 (2). This meaning continues to apply "until the village in which such land is situate is surveyed and settled". The contention on behalf of the appellants was that the operations carried out by the Collector under Section 52 of the Code did not result in the villages in which the lands of the appellants are situate being surveyed and settled, even though the Collector did make an assessment under Section 52 of the Code. On the other hand, the Government applied the assessment made by the Collector under Section 52 of the Code on the basis that the words "surveyed and settled" as used in Section 19 (1) of the Act are not defined and the requirements of those words must be held to be satisfied when the Collector made the assessment under Section 52 of the Code in accordance with the principles laid down in Rule 17 of the Rules. It was urged that the words "surveyed and settled" were not used in any technical sense and all that was required was that, in substance, there should be a survey and settlement resulting in assessment. Once that is done, the assessment made by the Mamlatdar becomes ineffective and the new assessment, which is the result of survey and settlement, takes its place for purposes of determination of the compensation payable under Section 18 of the Act.