STATE OF GUJARAT v. JETAWAT LAL SINGH AMAR SINGH & Ors.

HELD : (i) The first respondent was entitled to enjoy and was en- joying 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-CJ (ii) The first respondent was entitled to get the cash allowance from the jagir, that is, it was a cha'rge on the Jagir. Sinee it was aJso an interest in property which \Vas extinguished on the abolition of the jagir, the first respondent was entitled to claim. co1npensation. f.619 C-DJ State of Gujarat v. Vakhatsinghji Sursinghji Vaghcla, [1968] 3 S.C.R. I.L.R. 9 Born. 483, 692 and Shapurji livanji v. Collector of Bo1nbay, explained. 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 appel lant. Somnath R. Upadhya and Bhuvanesh Kumari, for the respon dent No. 1. .. t 616 SUPREME COURT REPORTS [1969] I S.CR. The Judgment of the Court was delivered by Hegde, J. This is an appeal by special leave. Herein we have to detennine the true scope of s. 14 ( I ) of the Bombay Merged Territories and Areas (Bombay Act No. (Jagir Abolition) XXXJX .of 1954). That question arises thus : Respondent No. I was the Bhayyat of the Jagir of Ghantoil. That Jagir was situated in the Idar State, a fonner Indian Stale. 'TI1e area comprised in 1hat State is a part of the State of Gujarat at present. The said Jagir was a proprietary Jagir and for the pur pose 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 Thakorc of Ghan toil. Shri Dalpatsinhji 'kumansingh granted as Jiwarak bther of the present rc; pondent, a half share in a village by means In 1928 dispute arose between of a deed dated Feb. 18, I 916. 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 ldar State claiming Jiwarak. The Coutt of first instance decreed the suit in favour of the first respondent and hi; brothers. The Thakorc went in appeal against the said judg ment. When the appeal was pending, the dispute was compro mised 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. (I) Rights to recover assessment (Vighoti) of Sur vey Nos. 382-387, 396, 398. 399, 542, 543, 544, 545 and 546 assessed at Rs. 175/-. (2) Right to own and possess Gharkhcd 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 I. 1954 as a result of which all Jagirs in the merged territories of Bombay including the JJgir of Ghantoil were abolished. Thereafter respondent No. 1 cl:limed compensation under s. 14( I) of the Act. He applied to the Ja)!ir 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 Gujarat Revenue Tribunal, the Tribunal granted him compensa tion in respect of his rights to recover assessment of Rs. 175 I· annually but it rejected his claim for compensation under remaining two heads. The first respondent then took up matter to the Gujarat High Coun under Art. 227 of the Constitu· A B c D E F G H • A B c GUJARAT v. J. L, SINGH (Hegde, /.) 617 The High tion in Special Civil Application No. 500 of 1961. 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 hls right to receive cash allowance of Rs. 234/12/- ~uall¥· The Jagir Abolition Officer was directed to hold furtlier mqwry for determining a compensation payable to the first respondent ~n respect of those rights. Thls 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 prerunble reads : "Whereas it is expedient in the public interest to abolish j agirs of various kinds in the merged territo ries and merged areas in the State of Bombay and to provide for matters consequential and incidental thereto; It is hereby enacted as follows ........ " • D Section 2 defines the various expressions land, Jagir, Jiwai Jagir, used in the Act. under s. 3. That Section reads : including Gharkhed Jagirs are abolished E F "Notwithstanding ailyfuing 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 provisions of this Act, the right of a ja!!irdar to recover rent or assessment of land or to :evy or recover any kind of tax, cess, fee, charge of any hak and the right of reversion or lapse, if any, in a jagirdar, and all other rights of a vested 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 extin guished." G 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 pay able to the Jagirdar. We are dealing with the case of a person coming under s. 14 (1) of the Act. That section prescribes the u' method of awarding compensation to persons other fuan Jagirdars wh? are aggrieved by the provisions of the Act as abolishing, extmguishing or modifying any of their rights to or interest in property. The section reads thus : ' - - .... ~--' SGPREME COURT REPORTS [I 969] I S.C.R "Section 14 (I). If any person other than a jagirdar is aggri~ved 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, cxtinguishment or modification has not been provided for in the provi sions of this Act, such person may apply to the Collec tor for compensation." The real question for decision is whether the right to own and possess Gharkhcd land and the right to receive cash allowance annually from the Jagir are rights to property or at any rate inte rest in property. Before a person can claim compensation under s. 14( I) he has to establish (I) 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 fagir and ( 3: for such abolishing, extinguishment, modificatio1: compensation has not been provided in the provisions of this Act. It is admitted It is also admitted that he that the petitioner was not a Jagirdar. It was not said that for is aggrieved by the provisions of this Act. abolition of any of the privileges enjoyed by him any compensation The only had been provided under the provisions of the Act. 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 That was a right conferred on him under the pay assessment. 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. Thh was not a case of suspension of land revenue. The first respon · dent's right was to enjoy the land free of the liability to pay the land revenue. That was the position on 1hc date the Act came into force. So far as the Thakore was concerned collect the assessment of those lands had been given as J agir to the Jagirdar. We see no merit in the contention of Mr. N. S. Bindra, the learned Counsel for the appellant that the Soverei.~ had an inherent right to levy assessment and any agreement not to collect assessment has necessarily to be considered as a conces sion and not a right. That question is wholly irrelevant for our In this caSe we arc not called upon to consider present purpose. 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\ ri!!ht to or interest in property were abolished, extin guished or modified. We are considering the plaintiff-respondent's the right A • B c D E F G H - - GUJARAT v. J. L. SINGH (Hegde, J.) 619 A B c D E F G right to or interest in property as it stood before. the Act ~nd not after s. 5 of the Act came into force. There is no denymg the fact that right to enjoy a property without the liability to pa} assessment is a more valuable right than the right to enjoy the same property with the liability to pay assessment. Before Act, the first respondent was enjoying Gharkhed land without the liability to pay a&'essment but after the Act came into force he is to pay assessment. enjoying those very lands with the liability Therefore there is hardly any doubt that his interest in that pro perty 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 The first respondent was entitled to get that amount Jagirdar. In other words it was a charge on the Jagir. from the Jagir. Therefore it is an in~erest in property. liability of 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. 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 assess ment w.as collected as a matter of concession. That was only a concess10n and not a right. Mr. Bindra tried to extract one or two sc:nter:~es from the decision of the Bombay High Court in Shapurji hvan11 v . . The Collector of Bombay(') and found an argument on the basis of those sentences to the effect that the right to collect assessm.ent can neve: be given up. Far from content10n the dec1s1on actually proceeded on the basis that the .<aid right can he given up either by contract or on the basis of legislation. supporting For the reasons mentioned above we see no merit appeal. It is accordingly dismissed with costs. V.P.S. Appeal dismissed. [1968 3 S.C.R. 692. (2) l.L.R. 9 Bon1. 483.