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PETITIONER: SAYED REHMANMIYA MUSTAFAMIYA & OTHERS

       Vs.

RESPONDENT: THE STATE OF GUJARAT & OTHERS

DATE OF JUDGMENT: 02/12/1969

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA HEGDE, K.S.

CITATION:  1970 AIR 1072            1970 SCR  (3) 293  1970 SCC  (1) 130

ACT: Bombay Land Revenue Code (Act V of 1879) s. 52 Chaps.   VIII and  VIII-A  and Saurashtra Barkhali Abolition  Act  (26  of 1951) s. 19-Scope of.

HEADNOTE: Ordinance XXV of 1948, issued by the Raj Pramukh of the then State of, Saurashtra, was amended by Ordinance XXXIX of 1948 and  Ordinance  LXIV of 1949, with the result  that  matters relating  to land revenue in the State were governed by  the Bombay  Land  Revenue Code.  Section 52 of  the  Code  gives power  to  the Collector for fixing the  assessment  of  the amount to be paid as land revenue on all lands, Chap.   VIII deals  with  the procedure for ’survey’, and  Chap.   VIII-A deals  with  the procedure for ’settlement’.  In  1951,  the Saurashtra  Barkhali Abolition Act, 1951, for  abolition  of Barkhali tenure was passed.  Section 18 of the Act  provided for  payment of cash annuities as compensation  to  Barkhaii tenure-holders calculated on the basis of the assessment  in respect  of  the land in possession of the tenants  of  such holders.  Such assessment in relation to any land, until the village  in  which  such land is  situate  is  surveyed  and settled, is defined in s. 19(l) and has to be determined  by the Mamlatdar after holding an inquiry under s. 19(2).  The appellants, who were Barkhali tenure-holders, were paid instalments  of anuity till 1959 on the basis of  Assessment determined under s. 19(l) and (2).- In 1959, the existing r. 17  of  the Saurashtra Land Revenue Rules framed  under  the Bombay  Land  Revenue Code was deleted and a  new  rule  was substituted.   This rule laid down the method to be  adopted by  the Collector for fixing the assessment under s.  52  of the  Code, but the procedure did not involve any  survey  or settlement  under Chaps.  VIII and VIll-A of the  Code.   In pursuance of this rule, the Collector determined under s. 52 of the Code, the assessment payable on the lands which  were held   under   Barkhali-tenure  by  the   appellants.    The Government  then paid annuity under s. 18 of  the  Abolition Act  on the basis of the Collector’s assessment  instead  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.

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In appeal to this Court, HELD:Under  s. 19 of the Abolition Act, the  assessment made by the Mamlatdar under that section continues in  force until  there is a survey and settlement- in accordance  with Chaps.   VIII and VIII-A-of the Code, and there having  been no  such  survey  and  settlement of  the  villages  of  the appellant, the assessment made by the Mamlatdar continued to be  the  assessment  for  purposes  of  the  Abolition  Act. Therefore,  the Government was not justified in varying  the payment of annuity under s. 18 of the Act. [300 G-H] up.CI(NP)170-9 294 (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 a 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 and 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 accordance with Chaps.  VIII and VIII-A  such operations  would be undertaken.  But, for  the  intervening period, the Legislature, in s. 19 of the Abolition Act, laid down  a convenient and summary method- of assessment by  the Mamlatdar,  which was to be treated as the assessment  until the  village  in which the land is situate is  surveyed  and settled.    The   Legislature  did  not  intend   that   the Mamlatdar’s  assessment should be superseded by that of  the Collector under s. 52, because, that section does not at all envisage a survey and settlement. [297 F-H; 298 B-G] (b)If  the Legislature intended such a  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 H] (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 a 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. I). [299 D-F] (d)Moreover,  r. 17 requires a very limited action by  the Collector in classifying and comparing lands for purposes of assessment and is a mere exercise of a summary power by  him until   a  proper  survey  and  settlement  is  made.    The Legislature having granted to the Mamlatdar summary power to make  an  assessment until there was a  regular  survey  and settlement,  could not have intended it to be superseded  by another  summary assessment by the Collector under s. 52  of the Code. [300B-E]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 2468  and 2470 to 2479 of 1966.

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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, 931,1949, 1017 of 1963 and 168, 811 and 812 of 1964. R.M.  Hazarnavis,  K. L., Hathi and K. N.  Bhat  for  the appellants (in all the appeals). N.S.  Bindra,  B.  D. Sharma and S.  P.  Nayar,  for  the respondents (in all the appeals).                             295 The Judgment of the Court was delivered by Bhargava,  J.  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 I as "the Code") with  certain adaptations   and   modifications   became   applicable   to Saurashtra.  The main modifications, with which we are  con- cerned,  are that Chapters VHI 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 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, 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  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 Ordinances 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 Barkhali tenure.  As a 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 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:- 296 "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  leviable in  the  surrounding and adjoining khalsa or  assessed  non- khalsa lands or villages.

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(2)For  the  purpose of determining 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 determined 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 keeping  in view the above principle." In  pursuance of the power given, to the Mamlatdar under  s. 19  (2)  read  with  s. 19(l)  of  the  Act,  the  Mamlatdar determined  the assessment in accordance with the  principle laid down in s. 19 (1), and the initial /payment as well  as some instalments of the annuity were paid to the  appellants on  the  basis of the assessment 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 Rule 17 as it had been inserted in 1957.  This Rule 17 laid down the procedure for the assessment of the  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, laid down the method to be adopted by the Collector for fixing the assessment  under s.  52 of the Code.  This amended Rule 17 was  brought  into force on the 20th May, 1959 and, in pursuance of this  Rule, the Collector determined the assessment payable, inter alia, 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  paying annuity  under  s. 18 of the Act to the  appellants  on  the basis  of this assessment instead of continuing  payment  on the  basis  of  the assessment which had been  made  by  the Mamlatdar  under s. 19 of the Act.  This was  challenged  by the   appellants   in  the  High  Court  of   Gujarat,   but unsuccessfully.   Consequently, the appellants have come  up to  this Court in these appeals on the basis of  certificate of fitness granted by the High Court under Article 1 3 3 ( I ) (c) of the Constitution. 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 s. 52 of the Code read with R. 17 of the Rules and  it was urged that the appellants 297 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 considerable  force, was that assessment under s. 19 of  the Act has been given a special meaning, and payment, has to be made in accordance 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(l)  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 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.

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On  the  other hand, the Government applied  the  assessment made  by the Collector under s. 52 of the Code on the  basis that the words "surveyed and settled" as used in s. 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 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 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 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 Reforms Act.  Again,  in  s.2(33)  of  the Reforms Act, it is laid down 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 contains  the definitions,  though  the expression "survey  settlement  is defined as including a settlement made under the  provisions of  Chapter VIII-A.  The word "settlement" itself  has  been defined  for  the limited purpose of Chanter  VIII-A  in  s. 117C(l) as 298 meaning the result of the operations conducted in a 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 par, of a 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  procedure 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 195 1. 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 VIII  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 on  all lands; but, in that section, neither the words "survey"  nor "settlement"  or any of their derivatives was used.  In  the circumstances,  we  consider  that the  submission  made  by counsel  for  the appellants that the  words  "surveyed  and settled" used in s. 19 of the Act were intended to 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  a  -convenient  method  of  assessment  by   the Mamlatdar by a 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

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that,  in  areas  in  which there had  been  no  survey  and settlement  in accordance with Chapters VIII and  VIII-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 the expression "the  village in which such land is situate is surveyed and settled",  the Legislature  appears to have ruled out the applicability  of the  assessment  made by the Collector under s.  52  of  the Code, because s. 52 of the Code does not anywhere envisage a survey  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 superseded 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, and 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 in 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.   A  similar provision could have been made in s. 19 for superseding  the assessment made by the Mamlatdar.  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 a 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 a village and, when the Legislature, in s.  19 of  the Act, used the expression "village- is  surveyed  and settled", it clearly ruled out a mere, -assessment under  s. 52 of the Code which need not follow a, survey or settlement of a 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 a  survey  and settlement  in accordance with Chapters VIII and  VIII-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  17  requires the Collector to do is to  classify  land into  three  classes;  (1)  dry  crop,  (2)  nice  and   (3) irrigated.  These three classes 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

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similar  class and sub-class of land with land of  the  same class  and sub-class situated in the Bombay area apart  from areas  transferred to Bombay State at the time of  Reorgani- sation  of  the  States in 1956.  This  procedure  does  not involve  any survey.  Survey, as indicated by Chapter  111-A of  the Land Revenue Rules framed under the  Code,  requires the  settlement officer to examine  physical  configuration, climate and rain-fall, 300 markets,  communications, standard of husbandry,  population and supply of labour, agricultural resources, the variations 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 a summary power which appears to have been conferred on the Collector by s. 52  as a temporary measure until there could be a 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 a more or less summary procedure were  intended to  be given affect to by the Legislature in the Act,  there was  no  need at all to . create another  authority  in  the Mamlatdar to fix assessment by a slightly different  summary procedure.  It seems to us that the Saurashtra  Legislature, in  passing  the Act, for the temporary period  until  there could  be  a  regular  survey  and  settlement,  created   a machinery  by  granting  power to the Mamlatdar  to  make  a summary  assessment and that was clearly intended not to  be superseded by another summary fixation of assessment by  the Collector under s. 52 of the Code. The  High Court has held that, in substance and  in  effect, 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 a survey were required to be taken by the Collector at all.  The High Court seems to have assumed that the  procedure laid down 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 settlement not  of  individual lands but of a 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 made  by  the Mamlatdar continued to be assessment for purposes of the Act and the Government was, therefore, not justified in varying 301 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

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to  the appellants 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. V.P.S.               Appeals allowed.. 302