State of Gujarat Vs. Jetawat Lal Singh
Amar Singh & Ors [1968] INSC 181 (7 August 1968)
07/08/1968 HEGDE, K.S.
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, I.L.R. 9 Bom.
483, 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 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 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 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.
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.
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