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PETITIONER: RANGILDAS VARAJDAS KHANDWALA

       Vs.

RESPONDENT: COLLECTOR OF SURAT AND OTHERS.

DATE OF JUDGMENT: 03/10/1960

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L. GAJENDRAGADKAR, P.B. SUBBARAO, K.

CITATION:  1961 AIR  291            1961 SCR  (1) 951  CITATOR INFO :  RF         1983 SC 762  (17)

ACT:  Inams--Abolition of Personal Inams--Constitutional  validity  of  Enactment--Land used for non-agricultural  purpose--Levy  of  full  assessment  by  Collector--Validity--Bombay   Land  Revenue  Code,  1879  (Bom.  5 of 1879),  ss.  45,  48,  52,  117-R--Bombay Personal Inams Abolition Act, 1952 (Bom. 42 of  1953),  ss.  4,  5, 7--Constitution of  India,  Arts.  31-A,  294(b).

HEADNOTE:  The appellant was the holder of a personal inam which he had  purchased from the original inamdar to whom a Sanad had been  issued under Bombay Act No. VII of 1863.  He was paying  Rs.  7 as salami and Rs. 6-3-0 as quit rent, the full  assessment  of the land being Rs. 56-8-0.  The land which formed part of  the inam was originally in a village but subsequently became  a  part of the suburbs of the city of Surat and as the  land  was  being  used for non-agricultural purpose  and  a  large  bungalow had been erected on it, the Collector decided  that  it was liable to non-agricultural assessment under S. 52  Of  the Bombay Land Revenue Code, 1879, with effect from  August  1,  1955,  in  view of proviso (b) to s.  4  Of  the  Bombay  Personal   Inams   Abolition  Act,  1952.    The   appellant  challenged  the  constitutionality of  the  Bombay  Personal  Inams  Abolition Act, 1952, on the grounds, inter alia,  (i)  that  the  Act  was  not  protected  by  Art.  31-A  of  the  Constitution  of India as the property which bad been  dealt  with under the Act was not an estate and no compensation had  been.  provided in the Act for taking away the  property  of  the  appellant,  and (2) that in view of the fact  that  the  holder  of  the inam was, given a Sanad when  his  inam  was  recognised, it was not open to the State of Bombay to  enact  a  law which would in any way vary the terms of  the  Sanad.  The  appellant  also  contended  that,  in  any  case,   the  Collector’s  order  to the effect that the  land  should  be  assessed under S. 52 Of the Bombay Land Revenue Code,  1879,  as  non-agricultural was incorrect because (1) S. 7  Of  the

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Act  created  an exception to ss. 4 and 5  with  respect  to  lands  of  inamdars  used for building  or  for  other  non-  agricultural  purposes  and therefore the  appellant’s  inam  land  which was used entirely for non-agricultural  purposes  could not be assessed under s. 5 of the Act, (2) that s.  52  Of  the  Code  which gave power to  the  Collector  to  make  assessments  of lands not wholly exempt from the payment  of  land  revenue  did not apply to this case because  here  the  assessment had been fixed under the provisions of Ch.  VIII-  A of the Code and S. 52 only applied when no assessment  had  been fixed under Ch.  VIII-A.  952  Held:  (i)  that the Bombay Personal  Inams  Abolition  Act,  1952,  was  valid  and was protected by  Art.  31-A  of  the  Constitution of India.  Gangadharrao Narayanrao Majumdar v. State of Bombay,  [1961]  1  S.C.R.  943,  Thakur  jagannath  Baksh  Singh  v.  United  Provinces,  [1946] F.C.R. III and Maharaj Umeg Singh v.  The  ’State of Bombay, [1955] 2 S.C.R. 164, followed.  (2)  that  the exception made in S. 7 Of the Act only  saved  such  inam  lands as were used for building  or  other  non-  agricultural  purposes  by the inamdar from vesting  in  the  Government,  but they remained subject to the provisions  Of  ss. 4 and 5 of the Act.  (3)  that S. 52 of the Bombay Land Revenue Code, 1879,  when  it  said that the section would not apply  where  assessment  had  been fixed under Ch.  VIII-A of the Code,  referred  to  actual  assessment  under the Chapter and not  to  what  was  deemed  to be an assessment under that Chapter by virtue  of  S.  117-R, and that as the land in the present case was  not  wholly exempt from revenue and as in fact no assessment  had  been fixed on the land under Ch.  VIII-A, S. 52 would  apply  and the Collector would have power to make an assessment  in  the manner provided by that section.

JUDGMENT:  CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6 of 1959.  Appeal  by special leave from the judgment and  order  dated  March  5,  1957, of the Bombay High Court in  Special  Civil  Application No. 3255 of 1956.  Dhan Prasad Balkrishna Padhye and P. K. Chatterjee, for  the  appellant.  H.  N. Sanyal, Additional Solicitor-General of India, N.  P.  Nathwani, K. N. Hathi and R. H. Dhebar, for the respondents.  1960.  October 3. The Judgment of the Court was delivered by  WANCHOO  J.-This  appeal by special leave  raises  questions  relating  to  the constitutionality  and  interpretation  of  certain  provisions of the Bombay Personal  Inams  Abolition  Act  No.  XLII of 1953, (hereinafter called the  Act).   The  brief  facts necessary for present purposes are these.   The  appellant  was  the holder of a personal inam which  he  had  purchased from the original inamdar to whom a Sanad had been  issued under Bombay Act No. VII of 1863.  The land  953  which forms part of the inam was originally in village Athwa  but  is  now  in  the suburbs of the  city  of  Surat.   The  appellant was paying Rs. 7 as Salami and Rs. 6-3-0 as  quit-  rent, the full assessment of the land being Rs. 56-8-0.   In  November,  1952, the City Survey Officer of Surat wanted  to  levy  non-agricultural assessment on this land under s.  134  of  the Bombay Land Revenue Code, 1879, (hereinafter  called  the  Code), as the land was being used for  non-agricultural  purpose  and  a large bungalow had been erected on  it.  The

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appellant  objected  to this and  eventually  in  September,  1954, he was informed by the Collector that he would not  be  assessed  under  s. 134 of the Code but was liable  to  Don-  agricultural assessment with effect from August 1, 1955,  in  view  of  proviso  (b) to s. 4 of the  Act.   The  appellant  objected  to this also.  The Collector decided on  July  28,  1955,  that  the  land was liable to  full  assessment  from  August 1, 1955, as non-agricultural under s. 52 of the Code.  The  appellant then went up in appeal to the Bombay  Revenue  Tribunal  which was dismissed.  He filed a writ petition  in  the High Court challenging the order of the Revenue Tribunal  and also challenging the constitutionality of the Act.   The  High  Court  rejected  the application.   It  relied  on  an  earlier  decision of that Court so far as the  challenge  to  the  constitutionality  of the Act was concerned.   It  also  held  that  the  order  of  the  Collector  by  which   non-  agricultural  assessment was to be levied on  the  applicant  from  August  1,  1955, was  correct.   The  appellant  then  applied for a certificate to appeal to this Court which  was  rejected.   He then filed a special leave petition  in  this  Court  and  was granted special leave; and that is  how  the  matter has come up before us.  So  far as the constitutionality of the Act is concerned  we  have  considered it in Gangadharrao Narayanrao  Majumdar  v.  State of Bombay (1) in which judgment is being delivered to-  day, and have upheld the Act.  The only fresh point that has  been urged in this connection is that in view of Art. 294(b)  of the Constitution and in view of the fact that the  holder  was given  (1)  [1961] 1 S.C.R. 943.  954  a Sanad when his inam was recognized, it was not open to the  State  of Bombay to enact a law which would in any way  vary  the  terms  of  the  Sanad.   This  argument  based  on  the  immutability of Sanads was rejected by the Federal Court  in  Thakur  Jagannath  Baksh Singh v. The United  Provinces  (1)  and  has  also been rejected by this Court in  Maharaj  Umeg  Singh and others v. The State of Bombay and others (2).   We  also  reject  it for reasons given in the two  cases  cited.  The challenge therefore to the constitutionality of the  Act  fails in the present appeal also.  This  brings us to the contention of the appellant  that  in  any  case the Collector’s order to the effect that the  land  should  be  assessed  under  s.  52  of  the  Code  as  non-  agricultural  is not correct.  We are of opinion that  there  is  no force in this contention either.  Under s. 4  of  the  Act,  all personal inams have been extinguished and save  as  expressly  provided by or under the Act, all rights  legally  subsisting  on  the said date in respect  of  such  personal  inams are also extinguished.  Therefore the appellant cannot  claim  protection  from being assessed fully after  the  Act  came  into  force.  Section 5 makes it clear that  all  inam  lands  shall  be liable to the payment  of  land-revenue  in  accordance with the provisions of the Code and would thus be  liable  to  full assessment as provided by  the  Code.   The  appellant  however relied on s. 7 of the Act  and  contended  that  s. 7 created an exception to ss. 4 and 5 with  respect  to  lands  of inamdars used for building or for  other  non-  agricultural  purposes  and therefore the  appellant’s  inam  land  which was used entirely for non-agricultural  purposes  (namely,  building) could not be assessed under s. 5 of  the  Act.  As we    read  s.  7, we find no warrant  for  holding  that it is an  exception to ss. 4 and 5. As already  pointed  out,  s.  4  abolishes  personal inams  and  the  rights  of  inamdars with respect to such inams and s. 5 makes all  inam

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villages  or  inam  lands subject to  the  payment  of  full  assessment  of  land-revenue in accordance  with  the  Code.  Section 7 deals with vesting of certain parts of inam  lands  in the State, (namely, public  (1) [1946) F.C.R. III.  (2) [1955] 2 S.C.R. 164.  955  roads, lanes and paths, all unbuilt village site lands,  all  waste  lands and all uncultivated lands and so on);  but  an  exception has been made so far as vesting is concerned  with  respect to lands used for building or other non-agricultural  purposes  by the inamdar.  The C. appellant relies  on  this  exception and it is urged on his behalf that this  exception  takes out the land so excepted from the provisions of ss.  4  and  5.  This reading of s. 7 is in our  opinion  incorrect.  That  section  vests  certain parts of  inam  lands  in  the  Government  and but for the exception even those inam  lands  which  were used for building and  non-agricultural  purpose  would have vested in the Government.  The exception made  in  s.  7  only  saves  such inam  lands  from  vesting  in  the  Government and no more.  The result of the exception is that  such  inam  lands do not vest in the Government  and  remain  what they were before and are thus subject to the provisions  of  ss. 4 and 5 of the Act.  The appellant therefore  cannot  claim  because of the exception contained in s. 7  that  the  lands  excepted from vesting are not subject to sa. 4 and  5  of the Act.  The argument therefore based on s. 7 must fail.  The  next contention on behalf of the appellant is that  the  Collector  has  no  power  to  assess  this  land  to   non-  agricultural assessment under s. 52 read with as. 45 and  48  of  the  Code.  Section 45 lays down that  all  land  unless  specially  exempted is liable to pay land-revenue.   Section  48  lays  down that the land revenue leviable  on  any  land  shall be assessed with reference to the use of the land  (a)  for  the  purpose  of agriculture, (b) for  the  purpose  of  building  and (c) for any purpose other than agriculture  or  building.   Reading the two sections together it is  obvious  that  the assessment depends upon the use to which the  land  is put and is to be made according to the rules framed under  the  Code.  In the present case it is not disputed that  the  land of the appellant is not being used for agriculture  and  is  actually  being  used  for  non-agricultural   purposes,  namely, for the purpose of building; therefore, if the  land  is to be assessed, as it must now be assessed in view of  s.  5 of the Act to full assess-  956  ment, it can only be assessed as non-agricultural.  For  the  purpose  of such assessment it is immaterial when  the  non-  agricultural  use of the land started.  It was in a  special  category  being a personal inam land and was upto  the  time  the  Act  came into force governed by the  law  relating  to  personal   inams.   The  personal  inams;  and  all   rights  thereunder were abolished by the Act and the land is now  to  be assessed for the first time to full assessment under s. 5  of the Act read with the provisions of the Code; it can only  be assessed as non-agricultural land for that is the use  to  which it is being put now when the assessment is to be made.  Section  48 makes it clear that the assessing  officer  when  assessing  the  land should look to the use to which  it  is  being  put  at  the time of the  assessment  and  assess  it  according  to  such use.  As the assessment is  to  be  made  after the coming into force of the Act it has to be on  non-  agricultural basis for that is the use for which the land is  being put at the time of assessment.  Lastly,  it  is urged that s. 52 which gives  power  to  the

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Collector  to  make assessments of lands not  wholly  exempt  from the payment of land-revenue does not apply to this case  because  here  the  assessment  has  been  fixed  under  the  provisions of Ch.  VIII-A of the Code and s. 52 only applies  when  no  assessment  has  been  fixed  under  Ch.   VIII-A.  Reference  was  also made to s. 117-R which appears  in  Ch.  VIII-A.  That Chapter was introduced in the Code in 1939 and  deals  with  assessment and settlement  of  land-revenue  on  agricultural  lands.  Section 117-R is a  deeming  provision  and  lays  down  that  all  settlements  of  land.   revenue  heretobefore  made  and introduced and in force  before  the  commencement  of  the Bombay Land Revenue  Code  (Amendment)  Act, 1939, by which this Chapter was introduced in the  Code  shall  be  deemed  to  have  been  made  and  introduced  in  accordance  with  the provisions of this Chapter  and  shall  notwithstanding anything contained in s. 117-E (which  deals  with the duration of a settlement) be deemed to continue  in  force until the introduction of a revision settlement.   The  argument is that because of this deeming  957  provision,  the  settlement on which this land was  held  as  inam  land  must  be deemed to have  been  made  under  this  Chapter  and therefore it cannot be said that no  assessment  has  been fixed under the provisions of Ch.  VIII-A in  this  case.   We  are of opinion that there is no  force  in  this  argument.  Section 117-R of the Code is a deeming provision.  Section 52 on the other hand when it says that that  section  will  not  apply where assessment has been fixed  under  Ch.  VIII-A,  refers to actual assessment under Ch.   VIII-A  and  not to what is deemed to be an assessment under that Chapter  by virtue of s. 117-R.  It is not in dispute that there  has  in  fact been no assessment under Ch.  VIII-A in this  case.  We  are therefore of opinion that as the land in  this  case  was  not  wholly  exempt  from revenue and  as  in  fact  no  assessment has been fixed on this land under Ch.  VIII-A, s.  52 would apply and the Collector would have power to make an  assessment in the manner provided by that section.  There is therefore no force in this appeal and it is  hereby  dismissed with costs.                           Appeal dismissed.