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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: JETAWAT LAL SINGH AMAR SINGH & ORS.

DATE OF JUDGMENT: 07/08/1968

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1969 AIR  270            1969 SCR  (1) 615  CITATOR INFO :  RF         1972 SC2097  (6)

ACT: The  Bombay Merged Territories and Areas  (Jagir  Abolition) Act  (Bom. Act 39 of 1954), s. 14(1)--Right to  enjoy  lands free of assessment and right to receive cash allowance  from Jagir as Jiwarak-Jagir abolished-If Jiwarak-holder  entitled to claim compensation with respect to his rights.

HEADNOTE: Under  s. 14(1) of the Bombay Merged Territories  and  Areas (Jagir  Abolition)  Act, 1954, if any person  other  than  a jagirdar  is aggrieved by the abolishing,  extinguishing  or modifying of his. interest in property, by the provisions of the   Act   and   if  compensation   for   such   abolition, extinguishment or modification has not been provided for  in the Act, he could apply to the collector for compensation. The first respondent was enjoying as  jiwarak  (maintenance) three  rights  under a compromise decree   namely:  (i)  the right   to   recover the assessment in  respect  of  certain lands in a jagir; (ii) the right to own and possess Gharkhed lands  in  the jagir free from payment  of  assessment;  and (iii)  the right to receive a cash allowance  annually  from the jagir, when the jagir was abolished by the Act. On the question whether the respondent was entitled to claim compensation  in  respect of items (ii) and (iii)  under  s. 14(1) of the Act, HELD: (i) The first respondent was entitled to enjoy and was enjoying  the  Gharkhed lands without the liability  to  pay assessment,  but  after the Act came into force. he  was  to enjoy those very lands with the liability to pay  assessment under  s.  4 of the Act’.  Therefore, his  interest  in  the property  was modified to his disadvantage and so,  he   was entitled to claim compensation. [619 A-C] (ii)  The  first  respondent was entitled to  get  the  cash allowance  from the jagir, that is, it was a charge  on  the Jagir.   Since it  was  also  an interest in property  which was  extinguished on the abolition of the jagir,  the  first respondent was entitled to claim compensation. [619 C-D] State of Gujarat V. Vakhatsinghji Sursinghji Vaghela, [1968] 3  S.C.R. 692 and Shapurji Jivanji V. Collector  of  Bombay,

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I.L.R. 9  Bom.  483, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1057 of 1965. Appeal  by special leave from the judgment and  order  dated November 21, 1963 of the Gujarat High Court in Special Civil Application No. 560 of 1961. N.S.   Bindra,  S.K.  Dholakia  and  S.P.  Nayar,  for   the appellant. Somnath R. Upadhya and Bhuvanesh Kumari, for the  respondent No. 1. 616 The Judgment of the Court was ’delivered by Hegde, J. This is an appeal by special leave. Herein we have to determine the true scope of s. 14(1) of the Bombay Merged Territories and Areas  (Jagir Abolition)  (Bombay  Act   No. XXXIX of 1954).  That question arises thus: Respondent  No. 1 was the Bhayyat of the Jagir of  Ghantoil. That  Jagir was situated in the Idar State, a former  Indian State.  The  area comprised in that State is a part  of  the State   of  Gujarat  at  present.  The  said  Jagir  was   a proprietary  Jagir  and for the purpose  of  succession  and inheritance,  it was governed by the rule of  primogeniture. The  eldest  son succeeded to the Gaddi:  the  other  junior members  of  the family were granted  maintenance  known  as Jiwarak,  out  of the Jagir estate.  The former  Thakore  of Ghantoil,  Shri Dalpatsinhji Kumansingh granted  as  Jiwarak to  the father of the present respondent, a half share in  a village  by  means of a deed dated Feb. 18, 1916.   In  1928 dispute  arose between the Thakore and the Bhayyats  in  the matter of aforesaid Jiwarak. Hence the first respondent  and his brother filed a suit in the Sadar Court of the then Idar State claiming Jiwarak. The Court of first’ instance decreed the suit in favour of the first respondent and his brothers. The Thakore went in appeal against the said judgment.   When the  appeal was pending, the dispute was compromised  and  a consent  decree was passed on September 23, 1940. Under  the consent decree the following rights were given to the  first respondent and his brothers as Jiwarak.               (1) Rights to recover assessment (Vighoti)  of               Survey Nos. 382-387, 396, 398, 399, 542,  543,               544, 545 and 546 assessed at Rs. 175/-.               (2) Right to own and  possess Gharkhed   Lands               consisting of Survey Nos. 219, 220, 225,  227,               228  and 229 assessed at Rs. 74/8/- free  from               payment of assessment; and               ( 3 ) Right to receive a cash allowance of Rs.               234/12/annually from the Jagir. The  Act came into force on August 1, 1954  as a result   of which  all  Jagirs  in  the  merged  territories  of  Bombay including the Jagir of Ghantoil were abolished.   Thereafter respondent No. 1 claimed compensation under s. 14(1) of  the Act.   He applied to the Jagir Abolition Officer for  fixing the compensation due to him in respect of his aforementioned rights.  That officer rejected his claim but when the matter was  taken up in  appeal  to  the Gujarat Revenue  Tribunal, ’the  Tribunal  granted him compensation in respect  of  his rights  to  recover assessment of Rs.  175/annually  but  it rejected  his claim for compensation  under   the  remaining two heads.  The first respondent then took up  the matter to the Gujarat High Court under Art. 227 of the Constitu- 617 tion  in  Special Civil Application No. 560 of  1961.    The

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High Court allowed that application.  It held that the first respondent  is entitled to compensation in  accordance  with the provisions  of the Act both in respect of Gharkhed lands as well as in respect of his right to receive cash allowance of  Rs. 234/12/- annually. The Jagir Abolition  Officer  was directed   to  hold  further  inquiry  for   determining   a compensation payable to the  first respondent  in respect of those  rights.   This appeal is directed  against  the  said order of the High Court. The long title of the Act shows that it is an Act to abolish Jagirs  in  the merged territories and merged areas  in  the State of Bombay.  Its preamble reads:               "Whereas  it  is  expedient   in  the   public               interest  to abolish jagirs  of various  kinds               in the merged’ territories and merged areas in               the State of Bombay and to provide for matters               consequential  and incidental thereto;  It  is               hereby enacted as follows  ........  " Section  2  defines  the  various  expressions     including Gharkhed  land, Jagir, Jiwai Jagir, used in the Act.  Jagirs are abolished  under s. 3.  That Section reads:               "Notwithstanding  anything  contained  in  any               usage,  grant, sanad, order, agreement or  any               law  for the time being in force, on and  from               the appointed date,--               (i)  all jagirs shall be deemed to  have  been               abolished;               (ii)  save as expressly provided  by or  under               the  provisions  of this Act, the right  of  a               jagirdar to recover rent or assessment of land               or  to levy or recover any kind of tax,  cess,               fee,  charge  of  any hak  and  the  right  of               reversion  or  lapse,  if any,  vested   in  a               jagirdar,  and all other rights of a  jagirdar               or  of  any person legally subsisting  on  the               said  date, in’ respect of a jagir village  as               incidents  of jagir shall be deemed  ’to  have               been  extinguished." Section  4 provides that all Jagir villages shall be  liable to pay land revenue in accordance with the provisions of the Code and the rules relating to unalienated lands shall apply to these villages. In  this  case we are not concerned  with  the  compensation payable to the Jagirdar.  We are dealing with the case of  a person  coming  under  s. 14(1) of the  Act.   That  section prescribes  the method of awarding compensation  to  persons other than Jagirdars who are aggrieved by the provisions  of the  Act  as  abolishing, extinguishing or modifying any  of their  rights   to, or interest in  property.   The  section reads thus: 618 "Section 14 ( 1 ).               If  any  person  other  than  a  jagirdar   is               aggrieved  by  the provisions of this  Act  as               abolishing, extinguishing or modifying any  of               his rights to, or interest in property and  if               compensation      for     such      abolition,               extinguishment  or modification has  not  been               provided  for in the provisions of  this  Act,               such  person  may apply to the  Collector  for               compensation." The  real question for decision is whether the right to  own and  possess  Gharkhed land and the right to  receive   cash allowance annually from the Jagir are rights to property  or at any rate interest in property.  Before a person can claim

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compensation under s. 14(1) he has to establish (1) that  he is  not  the  Jagirdar  of the concerned  Jagir  (2)  he  is aggrieved  by  the  provisions of  the  Act  as  abolishing, extinguishing or modifying any of his rights to, or interest in property as a result of the abolition of the Jagir and (3 )   compensation   for  such   abolishing,   extinguishment, modification   has  not been provided in the  provisions  of this  Act.   It is admitted that the petitioner  was  not  a Jagirdar.   It is also admitted that he is aggrieved by  the provisions of this Act.  It was not said that for  abolition of any of the privileges enjoyed by him any compensation had been  provided’ under the provisions of the Act.   The  only point in controversy is whether the claim put forward by him can be considered as right to, or interest in property. We shall first take up the Gharkhed lands.   Admittedly  the first  respondent  was  enjoying  those  lands  without  any liability to pay assessment.   That was a right conferred on him  under  the compromise decree.  No material  was  placed before  us to show that the Jagirdar was competent in  spite of  the compromise decree to collect assessment from him  in respect  of those lands.  This was not a case of  suspension of land revenue.  The first respondent’s right was to  enjoy the  land  free of the liability to pay  the  land  revenue. That was the position on ’the date the Act came into  force. So  far as the Thakore was concerned  the right  to  collect the assessment of those lands had been given as Jagir to the Jagirdar.   We see no merit in the contention  of  Mr.  N.S. Bindra,  the  learned  Counsel for the  appellant  that  the Sovereign  had an inherent right to levy assessment and  any agreement  not to collect assessment has necessarily  to  be considered  as a concession and not a right.  That  question is wholly irrelevant for our present purpose.  In this  case we  are not called upon to consider the nature of the  power of the Sovereign to levy assessment.  The only question  for our decision is that whether  by abolishing the Jagir and by levying  assessment  on  the  Gharkhed  lands  any  of   the respondent’s   right  to  or  interest  in   property   were abolished, extinguished or modified. We are considering  the plaintiff-respondent’s 919 right to or interest in property as it stood before the  Act and not after s. 5 of the Act came into force.  There is  no denying the fact that right to enjoy a property without  the liability  to assessment is a more valuable right  than  the right  to enjoy the same property with the liability to  pay assessment.   Before   the  Act, the  first  respondent  was enjoying   Gharkhed  land  without  the  liability  to   pay assessment  but  after the Act came into force  he  enjoying those  very. lands with the liability  to  pay   assessment. Therefore  there  is hardly any doubt that his  interest  in that  property  stands  modified.  In this case  it  is  not necessary   to  consider  whether  that  interest   can   be considered as a right in the property. We are also in agreement with the High Court that the  right to receive cash allowance of Rs.. 234/12/- annually from the Jagir  is  one  of  those  rights  that   have  got  to   be compensated   under  s. 14(1).  That liability was  not  the personal    liability    of   the  Jagirdar.     The   first respondent  was entitled to get that amount from the  Jagir. In other words it was a charge on the Jagir. Therefore it is an  interest in property.  We are unable to agree  with  Mr. Bindra that the decision of this Court in Civil Appeals Nos. 517-534 of 1965 (The State of  Gujarat etc. V. Vakhatsinghji Sursinghji  Vaghela)(1) to which two of the members of  this Bench  were parties is of any assistance to  the  appellant.

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Therein this Court was called upon to consider the scope  of s. 14(1) of the Bombay Taluqdari  Abolition Act, 1949.   The language  of that provision is substantially different  from the language of s. 14( 1 ) of the Act.  Further therein this Court  held that the concerned Taluqdar was not entitled  to enjoy  the lands with the liability of paying only   60%  of the   assessed assessment though for some years only 60%  of the  assessed  assessment  was  collected  as  a  matter  of concession.   That  was only a concession and not  a  right. Mr.  Bindra tried to extract one or two sentences  from  the decision of the Bombay High Court in Shapurji Jivanji V. The Collector of Bombay(2) and found an argument on the basis of those  sentences  to the effect that the  right  to  collect assessment  can  never be given up.   Far  from   supporting that contention the decision actually proceeded on the basis that the said right can be given up either by contract or on the basis of legislation. For  the reasons mentioned above we see no merit   in   this appeal.  It is accordingly dismissed with costs. V.P.S.                                  Appeal dismissed. [1968] 3 S.C.R. 692.....  (2) I.L.R. 9 Bom. 483. 620