SAYED REHMANMIYA MUSTAFAMIYA & OTHERS versus THE STATE OF GUJARAT & OTHERS

SAYED REHMANMIYA MUSTAFAMIYA & OTHERS

THE STATE OF GUJARAT & OTHERS

December 2, 1969

[V. BHARGAVA AND K. S. HEGDE, J J .]

Ho111hay lt11td R£'l'et111e ('ode (Act V of 1879) s. 52 Chaps. VIII and VIII-A and Sa11rashtrt1 Barkha!i Aholitio11 Acl (16 of J95l) s. 19-Scope of.

Ordinance XXV of J 948, issued by the Raj Pran1ukh of the then St<th~ of Saurashtra. 'A-'as amended by Ordinance XXXIX of 1948 a11J Ordi-~ancc LXlV of 1949, "-'ith _the result that matters relating to lanJ revenue 1n the State Wl.~e governed by the Bombny Land Revenue Code. Sc<."lion 52 of the Code gives power to the Collecto·r for fixing the asscssn1cnt of the an1ount to he paid as land revenue on all lands, Chap. VIII deals v.i1h 1_he procedure for "survey·, and Chap. VJIJ-A deals with the procedure for 'settlement". In 1951, the Saurashtra Barkhali Abolition Act. 1951. 0 for <1holition of Barkhali tenure was passed. Section 18 of the Act provided fOr payn1cnt Of cash annuities as compensation to Barkhali tenure-holders calculated on the basis of the ~1ssc~sn1cnt in respect of 1hc land in possession of the ten.ants of such holders. S~1ch asscssn1ent in relation to any land. until the village in which such Janel is situate ir \Urveyed {Ind ,\'ettled, is definell in -::;, 19(1) and has to he <lctcrn1incd by the Marnlatdar after 'holding an inquiry under s. 19(2). The appellants, who were BarkhaJi tenure-holders. were paid instal-n1ents of annuity till 1959 on the basis of asses~n1ent determined under s. 19(1) and (2). In 1959. the existing r. 17 of the Saurashtra Ltntl Revenue Rules framed under the Bombay Land RcvC'nuc Code \i.·as llelctcd antl new rule was substituted. This rule laid tlown the n1etho<l 10 be adopted by the Collector for fixing the assessment under s. 52 of the Colle, but the procedu're did not invol1·e ony Slt1Tey or se~tle111e11t un<ler Chaps. VIII an<l Vlll-A of the Co<lc. Jn pursuance of this rule. the Collector determined under s. 52 of the Code, the assessment payable on the lan<l.s which were held under Barkhali·tenure by the appellants. The Government then paid annuity un<ler s. 18 of the Abolition Act on the basi ... of the Collector's assessment instea<l of continuing payment on the basis of the assessment made by the Mamlatdar under s. 19 of the Act. This was challenged by the appellants unsuccessfully in the High Court.

In appeal to this Court,

HELD : Under s. 19 of the Abolition Act, the assessment made bv the Marnlatdar under that section continues in force until there iv s11rvey and settle111ent in accordance with (,haps. VIII and VITI-A of the Code. and there having been. no such survey and settlement of the viUagcs of the appellant, the assessment made by. the Mamlatdar continued to be the assessment for purposes of the Aboht1on Act. Therdore, the Govern· mcnt was not justified in varying the payment of annmty under s. 18 of the Act. [300 G-HJ !..7Sup.CI(NP)/70-9(a) By virtue of s. 2(v) of the Barkhali Abolition Act and s. 2(33) • of the Saurashtra Land Reforms Act, 1951, all words and expressions, used, but not defined in the Abolition Act, have the meanings assigned to them in the Bombay Land Revenue Code. The words 'surveyed' and 'settled' are not defined in the Abolition Act, but the expression 'survey settlement' is defined in the Code as including settlement made under the provisions of Chap. VIII-A of the Code. Therefore, at the time when the Abolition Act was passed. the only manner of survey which was laid down by any law applicable in the State was that contained in Chap. VIII of the Code, and the only manner of settlement was that contained in Chap. VIII-A; that is, the words 'surveyed' and 'settled' used in s. 19 of the Abolition Act were intended to refer to the survey aiid settlement under Chaps. VIII and VIII-A of the Code. The Legislature envisaged that, in areas in which there had been no survey and settlement in accord-ance with Chaps. VIII and Vlll-A such operations would be undertaken. But, for the intervening period, the Legislature, in s. 19 of the Abolition Act, laid down convenient and summary method of assessment by the Mamlatdar, which was to be treated as the assessment until the vil/af!e in which the land i~ situate is surveyed and settled. The Legislature did not i otend that the Mamlatdar's assessment should be superseded by that of the Collector under s. 52. because, that section does not at all envisage survey and settlement. [297 F-H; 298 B-G]

(b) If the Legislature intended such supersession, the Legislature would have laid down that the Mamlatdar's assessment shall remain effective until an assessment is made under the Code without making any reference to survey or settlement. [298 HJ

(c) Further, s. 52 of the Code envisages assessment on all lands, while s. 19 of the Abolition Act refers to survey and settlement of village. Since there could be assessment of revenue on lands without -survey or settlement. of the village, such an assessment could not supersede that of the Mamlatdar under s. 19. [299 D-F1 ·

(d) Moreover, r. 17 requires very limited action by the Collector in. classifying and comparing lands for purposes of assessment and is mere exercise of summary power by him until proper survey and se!tlement is made. The Legislature having granted to the Mamlatdar summary power to make an assessment until there was regular survey and settlement, could not have intended it to be superseded bv another summary assessment by the Collector under s. 52 of the Code. [300 B-E]

CrvrL AP PELLA TE JURISDICTION : Civil Appeals Nos. 2468 and 2470 to 2479 of 1966.

Appeals from the judgment and order, dated July 22, 23, 1965 of the Gujarat High Court in Special Civil Applications Nos. 572, 695, 974, 861, 930, 931, 949, 1017 of 1963 and 168, 811 and 812 of 1964.

R. M. Hazarnavis, K. L. Hathi and K. N. Bhat for the appel-lants (in all the appeals).

N. S. Bindra, B. D. Sharma and S. P. Nayar, for the respon-dents (in all the appeals).

The Judgment of the Court was delivered by

Bhargava, J. The appellants in atl 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 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 Ordi· nance XXV of 1948 issued by the Raj Pramukh, number of Acts in force in the Province oi 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 adapt~tions and modifications became applicable to Saurashtra. The main modifications, with which we are con-cerned, are that Chapters VIII and VIII-A of !he 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 further amendment of Ordinance XXV of 1948 by Ordinance LXIV of 1949 the result of which was that entry relating to s. 52 of the Code in Ordinance XXV of 1948 was omitted. The consequence of this omission was that s. 52 became applicable to the State of Saurashtra, in· eluding 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 became 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 Ordinance~ XXXIX of 1948 and LXIV of 1949 mentioned above.

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 Girazdari tenure, and the second was the Saurashtra Barkhali Abolition Act No. XXVI of 1951 (hereinafter referred to as "the Act") for abolition of Bar-khali tenure. As result of the -abolition of the rights of the appellants, they became entitled to compensation under s. 18 of the Act which provided for payment of cash annuity calculated on the basis of the assessment in respect of the 1'1!d in posses· sion of the tenants of the holders of Barkhali tenure. The assessment in respect of the land, on the basis of which com· pensation was to be calculated and annuity paid was defined in section 19 of the Act which reads as follows :-

"19. ( 1) For the purposes of this Act, assessment shall mean in relation to any land, until the village in which such land is situate is surveyed and settled, assessment calculated on an arithmetic average of assessment levi-able in the surrounding and adjoining khalsa or assessed non-khalsa lands or villages.

(2) For the purpose of detemtlning 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 detem1ined shall be published in such manner as may· be prescribed :

Provided that where the assessment so calculated is manifestly unfair, the Government may modify it keep-ing in view the above principle."

In pursuance of the power given to the Mamlatdar under s. 19

(2) read withs. 19( I) of the Act. the Mamlatdar detemlined the assessment in accordance with the principle laid down in s. 19 ( 1 ) , and the init1al ,payment as well as some instalments of the annuity were paid to the appellants on the basis of the assess-ment so determined. In 1959. however, the Government amended the Saurashtra Land Revenue Rules framed under the Code as it had been adapted and applied to Saurashtra area and substituted Rule 17 for the existing Ruic 17 as it had been inserted in 1957. This Rule 17 laid down the procedure for the assessment of ilie amount to be paid as land revenue on all lands in Saurashtra which were not wholly exempt from payment of land revenue and on which the assessment had not been fixed under the provisions of Chapter VIII-A. ·This Rule, thus, faid down ilie method to be adopted by the Collector for fixing the assessment under s. 52 of ilie Code. This amended Rule 17 was brought into force on the 20th May, 1959 and, in pursuance of this Rule, the Collector detennined the assessment payable, inter a/ia, on the lands which were held under Barkhali tenure by the appellants. Consequent on this assessment by the Collector under s. 52 of the Code, the Government started P,aying annuity under s. 18 of the Act to the appellants on the basis of this a;;sessment instead of continuing payment on the basis of the assessment which had been made by ilie Mamlatdar under s. 19 of ilie Act. This was challenged by the appellants in the High Court of Gujarat, but unsuccessfully. Consequently, the appellants have come up to iliis Court in .these appeals on the basis of certificate of fitness granted by the High Court under Article 133 (1 )( c) of the Constitution.

In ilie High Court, various grounds were taken for challenging the validity of the action of the Government in paying annuity on ilie basis of ilie Collector's assessment under s. 52 of the Code read with R. 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 s. 19 of the Act. The principal ground. which we think has consider-able force, was that assessment under s. 19 of the Act has been given special meaning, and payment has to be made in accord-ance with the' assessment mentioned in s. 19 of the Act and not in accordance with the assessment made by the Collector under s. 52 of the Code. Under s. 19(1) of the Act, assessment i' 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 deter-mined by. the Mamlatdar after holding ant enquiry under s. 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 s. 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 s. 52 of the Code. On the other hand, the Government 0 applied the assessment made IJy the Collector under s. 52 of the Code on the basis that the words "surveyed and settled" as used in s. 19 (I) 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 s. 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 survey and settlement resulting in assessment. Once that is done, the assessment made by the Mamlatdar becomes ineffective and the new as~essment, which is tlie result of survey and settlement, takes its place for purposes of detennina-tion of the compensation payable un<kr s. 18 of .the Act.

It is true that the words "surveyed and settled" have not been defined in the Act; but. in clause (v) of s. 2 of the Act, it is laid down that all words and expressions used, but not defined, in the Act shall have the meanings assigned to them in the Refonns Act. Again, ins. 2(33) of the Refonns Act, it is laid aown that all words and expressions used, but not defined, in that Act and defined in the Code shall have the meanings assigned to them in the Code. . Since the words "surveyed and settled" were not defined in either of these two Acts, we have to look· to the Code to find their meaning. In the Code, the words "survey" and "settlement" are not separately defined in section 3 which con-H tains the definitions, though the expression "survey settlement" is defined as including settlement made under the provisions of Chapter VIII-A. The word "settlement" itself has been defined for the limited purpose of Chapter VIII-A in s. ll 7C(1) as.meaning the result of the operations conducted in zone in order to determine the land revenue assessment. Until the year 1956, instead of the expression "a zone", the words used were "a taluka or part of taluka". It will, thus, be seen that, even under the Code, the two words "survey" and "settlement" were not fully defined for all purposes. The definition of settlement was limited by laying down that this word was to connote the meaning given to it in the definition only in Chapter VIII-A. However, the pro-cedure for survey was fully indicated in Chapter VIII, while the procedure for settlement was fully laid down in Chapter VIII-A. It was in this state of law that the Saurashtra Legislature passed the Act in 1951. It is, however,· clear that, at the time when the Act was passed, the only manner of survey which was laid down by any law applicable in the State of Saurashtra was that contained in Chapter Vlll of the Code and the only manner of settlement was that contained in Chapter VIII-A. There was, of course, at the same time, provision contained in s. 52 of the Code for assessment of the amount to be paid as land revenue <ln all lands; but, in that section, neither the words "survey" nor "settlement" or any of their derivatives was used. In the circum-stances, we consider that the submission ntade by counsel for the appellants that the words "surv.~yed and settled" used in s. 19 of the Act were intended lo refer to the survey and settlement under Chapters VIII and VIII-A of the Code has great force. The Legislature, in s. 19. first laid down convenient method of assessment by the Mamlatdar by summary procedure and that assessment was to be treated as the assessment for all purposes of the Act until the village in which the land in question may be situate is surveyed and settled. The Legislature envisaged that, in areas in which t!Jcre had been no survey and settlement in accordance with Chapters VIII and VIH-A of the Code, such operations would be undertaken. But, for the intervening period. until those operations could be completed, summary power was given to the Mamlatdar to fix the assessment on the basis of the guiding principles laid down in that section. In using tjlc expres-'ion "the village in which such land is situate is surveyed and settled'', the Legislature appears to have ruled out the aoplica-bility of the assessment made by the Collector under s. 52 of the Code, because s. 52 of the Code does not anywhere envisage 'urvey and settlement in any of the words in that section. If the Legislature had intended that the Mamlatdar"s assessment made by the summary manner laid down in s. 19 itself be super-seded by any assessment made under the Code, including an assessment·by the Collector under s. 52 of the Code, the language used in s. 19 would certainly have been different. Instead of saying that the assessment made by the Mamlatdar under s. 19 is to be effective until the village in which such land is situate is surveyed and settled, the Legislature could have easily laid down

that that assessment shall remain effective until an assessment is made under the Code. In this connection, reference may be made to section 16 of the Act in which the Legislature laid down what was to be the land revenue payable on all lands held, on the commencement of the Act, as Barkhali lands including Gharkhed. and land allotted 'Under the Act. The provision made in s. 16 was that the lands were liable to payment of land revenue under the provisions of the Code and the Rules made thereunder. Jn that section, the Legislature did not make reference to any survey or settlement. It only laid down that the land revenue payable was to be as determined under the provisions of the Code and the Rules made thereunder. similar provision could have been made in s. 19 for superseding the assessment made by the Mamlat-dar. Instead, the requirement prescribed by the Legislature was that the assessment by the Mamlatdar was to continue in force until the village is surveyed and settled and not merely until an assessment of revenue payable in respect of the land is determined either under s. 52 of. the Code or Chapter VIII-A of the Code.

This view of ours is further strengthened by comparison of the language used in s. 19 of the Act 'and s. 52 of the Code. Section 52 of the Code envisages assessment of amount to be paid as land revenue "on all lands", while s. 19 of the Act refers to survey and settlement of "a village" and not of lands. Obviously. under s. 52 of the Code, there could be assessment of revenue on lands without survey or settlement of village and, when the Legislature, in s. 19 of the Act, used the expression "village is surveyed and settled". it clearly ruled out mere assessment under s. 52 of the Code which need not follow survey or >ettk-ment of village. In our opinion. therefore, under s. 19 of the Act, the assessment made by the Mamlatdar under that section itself must continue in force until there is survey and settlement in accordance with Chapters VIII and VIIT-A of the Code.

In this connection, we may take notice of one more aspect. Even under s. 52 of the Code and Rule 17 of the Rules made thereunder, there is, in fact, no survey at all. All that Rule I 7 requires the Collector to do is to classify land into three classes: (I) dry crop, (2) rice and (3) irrigated. These three classc' are then to be divided into three sub-classes, good, medium and inferior. Assessment is then to be made on each parcel of land by comparison of. similar class and sub-class of land with land of the same class and sub-class situated in the Bombay urea apart from areas transferred to Bombay State at the time of Reorgani-sation of the States in 1956. This procedure doos not invok~ any survev. Survey, as indiCated bv Chapter III-A of the Land Revenue Rules framed under the Code, requires the settlement ofticer to examine physical configuration, climate _and rain-fall.markets, communications, standard of husbandry, population and supply of labour, agricultural resources, the vanati!Jns in the area of occupied and cultivated .lands during the period of previous settlement, wages, prices, yield of the principal crop, ordinary expenses of cultivating each crop, and rental values of lands used for purposes of agriculture .. No such survey of any of these factors was required to be done by the Collector when making the assessment of land revenue payable under s. 52 of the COde read with Rule 17. In fact; the provisions of Rule 17 require very limited action by the Collector in classifying lands and comparing lands to be assessed with lands in untransferred area of the Bombay State. Fixing of land revenue payable, on this principle, is also clearly exercise of sumi'nary power which appears to have heen conferred on the Collector by ~- 52 as temporary measure until there could be proper settlement of land revenue after survey in accordance with Chapters VIII and VIII-A of the Code. If such assessment made by the Collector by more or less sum-mary procedure were in<endccl to he given effect to by the Legis-lature in the Act, there W<L~ no need at all to create another authority in the Mamlatdar to fix assessment by slightly different summary procedure. It seems to us tltat the Saurashtra Legisla-ture, in passing the Act, for the temporary period until there could be regular survey and ~ettlement, created :machinery by granting power to the Mamlatdai to make summary assess-ment. and that was clearly intended not to be superseded by an-other summary fixation of assessment by the Collector under s. 52 of the Code.

The High Court has held that, in substance and in effeet, the Collector, in acting under s. 52 of the COde and Rule 17, did make the assessment after survey and settlement. Nowhere did the High Court examine whether any of the steps which are taken in survey were required to be taken by the Collector at all. The High Court seems to have assumed that the procedure laid dcmn in Rule 17 amounted to survey and settlement. Further, the High Court lost sight of the fact that, under s. 52 of the Code and Rule 17, the assessment of land revenue payable was in · respect of lands, while s. 19 of the Act envisaged survey and settle-ment not of individual lands but of village. We are, therefore. unable to agree with the view of the High Court that what the Collector did in 1959 in making the assessment under s. 52 of the Code and Rule 17 amounted to· survey and settlement of villages as envisaged in s. 19 of the Act. There having been no survey and settlement of the village, the assessment ma~e by the Mamlatdar continued to be assessment for purposes of the Act and the Oovemment was, therefore, not justified in varying

REHMANMIYA V. GUJARAT (Bhargava, I.)

the payment of annuity under -s. 18 of the Act which should have· been continued to be paid in accordance with that assessment.

The appeals are, consequently, allowed with costs. in both Courts and the orders of the High Court are set aside. As prayed by the appellants in their writ petitions, writs of mandamus shall issue to the Government to pay cash annuity to the appel-lants on the basis of the assessments made by the Mamlatdar under s. 19 of the Act and not in accordance with the assessments made· by the Collector under s. 52 of the Code read with Rule 17 of the Rules framed thereunder.

Appeals al/011·ed_