1. This Special Civil Application and Special Civil Applications Nos. 696, 794, 861, 930, 931, 1017, 388 and 949 of 1968 and Nos. 168, 811, 812 and 65 of 1964 involve identical facts and common questions of law and can, therefore, be conveniently disposed of by a common judgment. Special Civil Applications Nos. 588 of 1963 and 168 of 1964 how ever raise an additional question which we pro pose to deal separately in this judgment. Thefacts in all these petitions being similar, it is not necessary to recite them from all the petitions, and it will be enough if we take the facts in Special Civil Application No. 572 of 19815 as typical for a proper appreciation of the questions raised before us.
2. The petitioner in Special Civil Application No. 572 of 1963 was at all material times a barkhalidar, and as such his rights as those of a barkhalidar were accepted first by the former Junagadh State and thereafter by the ex-Saurashtra State, and cash annuity orders were issued in respect of the lands situate at Gorviali and Ranpur in the District of Junagadh in recognition of his being a barkhalidar within the meaning of the Barkhali Abolition Act, 1951. The State of Saurashtra, with a view to improving the economic and social renditions of the peasants and for other objects, passed several ordinances, the last of which was the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 being Ordinance 41 of 1949 Thereafter the Saurashtra Agrarian Commission was appointed by the Government of India with a view to study the revenue and tennancy problems of Saurashtra and on that Commission having issued its report, the State of Saurashtra enact ed the Saurashtra Land Reforms Act XXV of 1951 and the Saurashtra Barkhali Abolition Act XXVI of 1951, abolishing thereunder the girasdari and barkhali tenures. Both the Acts were reserved for the consideration of the President and have duly received his assent The two Acts were brought into operation on September 1, 1951 by a notification dated August 18. 1951
3. The petitioner being a barkhalidar, on the commencement of the Barkhali Abolition Act all his rights and interests in the agricultural lands, comprised in the aforesaid two villages of Gorviali and Ranpur came to an end and vested in the State of Saurashtra under Section 6 of the Act. Under the provisions of that Act, the petitioner became entitled to get a cash annuity in accordance with the provisions of Sections 18 and 19 and as prescribed by that Act. By a public notice dated July 12, 1952 the Mahalkari of Bhesan Taluk a published the rates of assessments in respect of the several barkhali and girasdari villages including the villages of Gorviali and Ranpur. These rates of assessment were published by the Mahatkari under the provisions of Section 44 of the Land Reforms Act, 1961 and Section 19 of the Barkhali Abolition Act of 1951. The rates of assessment published by the Mahalkari in respect of the village Gorviali were Rs. 4-7-6 per acre and in respect of Runpur Rs. 3-10-1 per acre These rates were fixed by the Mahalkuri under the provisions of Section 19 and following the principles and procedure laid down in Rules 83, 83-A and 84 of the Barkhali Abolition Rules framed by the Saurashtra Government under power reserved to them under the Act, 'Thereafter, the petitioner's tenants in Gorviali and Ranpur applied to the Mamlatdar for occupancy certificates in respect of lands of which they went the tenants and the Mamlatdar,after an enquiry as prescribed by the Act and the rules, passed orders specifying therein assessments of occupancy holdings as required by Section 12 of the Act. That order was challenged in appeal and in revision on issues other than the assessments specified therein, and the cases of the tenants of Gorviali were finally decided on January 3, 1955 in Revision Applications Nos. B. A 133 to 142 by the Revenue Tribunal, and the cases of the tenants of Ranpur were finally decided in appeal by the Deputy Collector. Northern Division. Junagadh, against whose order no revision was filed. As aforesaid, neither in these appeals nor in the revisions, the tenants challenged the rates of assessment fixed by the Mahalkari and according to the petitioner those rates of assessment became therefore, final and conclusive, for the purposes of the Act. As prescribed by the Abolition Rules, the Mamlatdar caused to be entered into the statement of particulars in Form VII particulars of cases and orders passed on the applications of the tenants and among other particulars the assessment of occupancy holding and the amount of cash annuity payable to the petitioner were, also entered On January 30, 1956 the Mamlatdar issued two cash annuity payment orders in the prescribed form in respect of the said two villages and. according to the petitioner he therefore became entitled to draw cash annuity from the treasury on February 1, 1952 and every year there after on that date until the last annuity due thereunder was paid to him There is no dispute that until February 1, 1962 the petitioner was permitted to draw his cash annuity from year to year as set out in the said cash annuity payment orders.
4. By Ordinance No XXXIX of 1948, the Bombay Land Revenue Code, 1878 was adapted and applied to the State of Saurashtra as from August 13, 1948. On the integration of the former State of Junagadh with the Saurashtra State on January 20, 1949 the Code was made applicable to the area of the Junagadh State At the time when the Code was made so applicable, or even when the Barkhali Abolition Act was passed in 1951, the Bombay Land Revenue Rules as adapted and applied to the State of Saurashtra did not contain Rules 17 and 18 as the two rules were repealed by the Government of Bombay by n notification dated March 5, 1940. In exercise of the powers conferred by Section 214 of the Code, the Government of Bombay amended the Land Revenue Rules as adapted and applied to the Saurashtra State by a notification dated September 27, 1957 and inserted in the said rules Rule 17 for the assessment of agricultural land under Section 52 of the Code. That rule however, did not apply to agricultural lands covered by the Land Reforms Act and the Barkhali Abolition Act. The Government of Bombay amended the rules by a notification dated May 20, 1959 whereby for Rule 17 as framed in 1957, a new rule was substituted providing assessment of land under Section 52 of the Code and bringing within its purview agricultural lands covered by the said two Acts. By an order dated September 9, 1959the Collector, Junagadh, in exercise of the powers under Section 52 of the Code read with the new Rule 17, fixed, in respect of ex-girasdar and barkhali villages in Bhesan Mahal, assessments to be calculated for each holding according to the rates correspondingly shown against each village in the schedule attached to that order and the order, provided that the assessment so fixed was to be levied for the year 1958-1959. Under that order, the rates of assessment for the lands situated in the two villages were fixed according to the class of land as specified in the schedule to that order. The rates of assessment fixed by the Collector and set out in that order were lower than hiP rates fixed by the Mamlatdar in 1952 under Section 19 of the Act. By another order dated April 10, 1960, the Collector, Junagadh reffved the rates of assessment in respect of the said two villages to be calculated for each holding according to the rates correspondingly shown against each village in the schedule attached to that order, and the assessment so fixed by this order was to be levied for the year 1959-1960. Under this order, the rates of assessment if respect of the aforesaid two villages were further reduced by the Collector. By a circular dated November 6, 1962 the Government of Gujarat informed all Collectors of Hajkot Division that it had come to the notice of the Government that even after the fixation of the rates of assessment by the Collector. the revenue authorities continued to pay cash annuity to barkhalidars at the rates of assessment fixed under Section 19 of the Act by the Mamlatdar. The circular directed that cash annuities should he paid to barkhalidars at the rates of assessment fixed by the Collector and that those rates of assessment wore to have effect as from the dates of the said orders passed by the Collector, that is to say from the year 1958 1959 and on-wards. When this circular came to be shown, in the barkhalidars their association made a representation to the State Government con tending, amongst other things, that the rates of assessment fixed by the Mamlatdar under Section 19 of the Act were final, that the amount of cash annuity calculated according to those rates should be paid throughout the prescribed period and that the lower rates of assessment fixed by the Collector were not relevant for calculating the cash annuity payable to the barkhalidars That representation was rejected. By a notice dated May 22, 1963 the third respondent as the Mamlatdar of Junagadh, called upon the petitioner to submit his cash annuity payment orders for amendment so as to substitute therein the amount of annuity payable to him at the rates fixed in the Collector On the same day, the petitioner replied that the State Government had no right to reduce the annuity or alter the annuity payment orders issued in his favour by the Mamlatdar. By a notice dated June 20, 1963 the Mamlatdar informed the petitioner that under the circular dated November 6, 1962 annuity in respect of village Gorviali was to be paid at the reduced rate of assessment fixed by the Collector and that, annuity at such reduced rate would be payable to him fromthe date of the order of the Collector, i.e. from the year 1958-1959 and, therefore, instead of Rs. 2,729-50 nP. which used to be paid to him until then, the annuity would be reduced to Rs. 1,229-11 nP., that the excess of Rs. 6,772-17 nP. paid during the period from 1958-1959 would be recovered from him by four instalments and that, therefore, no amount was payable to the petitioner as cash annuity for the current year as the amount for the current year was appropriated towards the excess payment. A similar notice was served upon the petitioner in respect of the village Ranpur, and the petitioner was informed that instead of Rs. 379-61 nP. payable as cash annuity under the aforesaid order, he would he entitled to be paid only Rs. 124-37 nP. that Rs. 1,041-34 nP. would be recovered from him as and by way of excess paid and therefore no amount was payable to the petitioner for the current year as cash annuity as the amount for the current year would be appropriated towards recovery of the excess payment, Aggrieved by the aforesaid circular and the said orders, the petitioner has filed this petition for a writ of mandamus or a writ in the nature of mandamus, quashing the circular dated November, 6, 1962. the Collector's aforesaid orders dated September 9, 1959 and April 10, 1960 and the notices issued by the Mamlatdar. and for a direction that the respondent should pay to the petitioner cash annuity mentioned in the cash annuity payment orders issued by the Mamlatdar, copies of which are annexed to the petition as Exhibits 'B' and 'C'
5. Amongst the petitioners before us there are, we are told, some who had propriety interest in the lands held by them and though their grant cannot strictly fall under the accepted concept of barkliali tenure, they have been declared barkhalidars by the Government by a notification issued under Section 2(1)(b) of the Barkhali Abolition Act. Therefore the Act applied to them also and they have filed their respective petitions raisins their claims under the provisions of the Act
6. The challenge in the petition is based on a number of contentions which may be summarised as follows :
(1) The State of Gujarat has no power to reduce the amount of cash annuity fixed under Sections 18 and 19 of the Act by fixing a lower rate of assessment under Section 52 of the Code Under Section 18 of the Act, assessment means the assessment calculated on an arithmetic average of assessments leviable in the adjoining Khalsa or assessed non-Khalsa lands or villages until the ullage in which the land is situated is settled and surveyed. Therefore, by virtue of Section 19 of the Act, until such survey and settlement take place, the assessment fixed on an arithmetic average was final and conclusive for the purpose of cash annuity.
(2) Under Section 3 of the Barkhali Abolition Act, the provisions of that Act have an overriding effect over other laws including the Land Revenue Code. Sections 18 and 19 of the Act and Section 52 of the Code have different scope and objects and are inconsistent with each other inthat whereas under Sections 18 and 19 of the Act it is the Mamlatdar who has the power to fix the assessment, under Section 52 of the Code it is the Collector who has the power to fix the rates of assessment. Further, under Sections 18 and 19 of the Act the Mamlatdar fixes the rates of assessment on an arithmetic average while he Collector under Section 52 of the Code fixes them on principles laid down in Rule 17 of the said rules The function of the Mamlatdar is judicial or quasi-judicial while that of the Collector under Section 52 is fankly executive
(3) The petitioner acquired a vested right to receive cash annuity on certificates issued to him. The provisions of Sections 18 and 19 of the Act having an over-riding effect his right would be adversely affected by an order under Section 52 of the Code
(4) The Act creates a special machinery under Sections 18 and 19 for determining the cash annuity, and the Mamlatdar is the authority for doing so under Section 21(c) of the Act Against the orders passed by the Mamlatdar there were appeals and revisions, and finally, writ petitions in the High Court of Saurashtra, Therefore orders being judicially made final, they were not subject to any reduction by executive orders of the Collector under Section 52 of the Code
(5) The power of the Collector under Section 52 is subject to the rules made under Section 214 of the Code These rules provide for payment of land revenue to the State They therefore cannot be applied for determining cash annuity payable under Section 18 of the Act whose purpose is different from the purpose of Section 52 and the Revenue Rules Under Section 52 read with Rule 17 the Collector's power is to fix only a provisional assessment until survey and settlement are made and therefore. Rule 17 has no application for determining assessment for the purpose of payment of cash annuity
(6) The assessments fixed by the Collector under Section 52 arc arbitrarily fixed without following the principles laid down in Rule 17. The rates of assessment have been fixed and the classification of lands have been made by him without following the principles of Rule 17 and without the necessity materials regarding matters therein contained.
(7) No notice was given to the petitioner regarding fixation of the revised assessment and the orders were thus passed behind the hack of the petitioner.
(8) The reduction of annuity was made upon an assumption that the State was liable to pay only that amount of compensation which it was entitled to recover as revenue from occupants of the barkhali lands. This assumption is not warranted by the Act.
(9) The Saurashtra Legislature enacted the Saurashtra Agricultural Debtors' Relief Act, 1964 with the object of providing relief to girasdars and barkhalidars, as the paying capacity of the girasdars and barkhalidars was reduced as a result of the abolition of the girasdari and barkhali tenures. This Act was part of the scheme of agrarian reform, and reading Section 38 of that Act in the context of thatscheme, it is clear that compensation payable under Section 18 of the Act was not reducible and that the amount fixed thereunder was to remain the same until, at any rate, survey and settlement were made under the Land Revenue Code And
(10) The Act having received the assent of the president as required by Article 31, the provisions of the Act cannot be ignored and therefore compensation fixed thereunder cannot be adversely affected without amending the Barkhali Abolition Act and without obtaining a fresh assent of the President for any such amendment Act.
7. Mr. Nanavati, who appear for the petitioner in this and the other petitions, argued in an elaborate and able argument that the petitioner was entitled to compensation as on September 1 1951 force. Therefore it was on the basis of the assessment as on that date and in relation to that assessment that his lands were acquired. If there was a change in the character of the land, and that change was reflected in I he surveyed and settled rates, it would not be an assessment in relation to that land which was acquired. He also argued that an annuity connected fixity of the amount and the period and. therefore, when the assessment was quantified it operated as from 1-9-1951 when the Act came into operation and the liability of the Government was crystallized as from that date. What was paid under Section 18 of the Act was annuity and not the land revenue assessment for the current year. He also argued that survey and settlement, as contemplated by Section 19. had a definite connotation and that such survey and settlement was survey and settlement as provided by Chapters VIII and VIII of the Code. Until such survey and settlement took place, the arithmetic average which was to be the basis for the fixation of the assessment by the Mamlatdar could prevail. The settlement, as contentplated by the Code and therefore, by Section 19 of the Act, would be based on classification of lands that is to say a survey made under Chapter VIII of the Code and the rate would be fixed on the classifications value Therefore, if an artificial principle Were to be adopted by the Collector while fixing assessment under Section 52 it would not be settlement within the meaning of Chapter VIII-A of the Code. His contention next was that the reduction of annuity payable to him was effected without hearing the petitioner The right to receive cash annuity being a right to property and that property having been adversely affected without giving a hearing to him, the orders of the Collector were in breach of Article 19 of the Constitution. He also contended that Rule 17 of the said rules violated Article 19 in that by reducing the assessment, the annuity payable to the petitioner was prejudiced and such prejudice was caused to him without giving him an opportunity of being heard. His last contention was that when Section 19 uses the expression 'until surveyed and settled'; the section refers to events which were to happen under the Land Revenue Code andnot to any power. When the assent of the President was taken, the only law that was then existing was the one contained in Chapters VIII and VIII-A of the Code and Section 19 of the Act. The President, therefore, could not be deemed to have applied his mind to any principle of assessment other than the one contained in Section 19, namely, the principle of arithmetic average, and the principles laid down in Chapters VIII and VIII-A of the Code There fore, if a fresh assessment were to be made under different principles provided in Section 52 of the Code and Rule 17, it could only be done by amending Section 19 and by obtaining a fresh assent to such amendment Act.
8. We propose to consider these contentions in the order in which they were raised, not only by Mr. Nanavati, but also by the other learned advocates who appear for the petitioners in the other petitions. But before we proceed to do so, it would clarify matters of we were first to state certain undisputed facts. It is on undisputed fact that the petitioner was it barkhalidar in respect of the two villages that his rights as such were accepted and recognised by the State of Saurashtra, and that of THE abolition of barkhali tenure occupancy certificates were issued to his tenants on the one hand and cash annuity payment orders were issued in his favour on the other in the sum of Rs. 3,729-8-0 in respect of the village Gorviali and Rs. 379-10-0 in respect of Ranpur on the strength of the rates of assessment fixed by the Mamlatdar under Section 19 of the Barkhali Abolition Act it is also an undisputed fad that the two villages in question were not surveyed and settled when the Barkhali Abolition Act and the Land Reforms Act came into operation and therefore as provided by Section 19 of the Itatkhali Abolition Act the Mahalkari fixed' the rates of assessment at Rs. 4-7-6 for Gorviali and Rs. 3-10-1 for Ranpur on the basis of arithmetic average, certificates of cash annuities were issued an the basis of these rates of assessment, and until the year 1962 payments were made to the petitioner in accordance with these annuity certificates. It is an admitted fact that under power reserved to it by Section 214 of the Code, the State of Bombay instruted Rule 17 in the Land Revenue Rules 1921 in a notification dated 27-9-1957 That rule was substituted by another under a notification dated May 20, 1959. As Rule 17 then stood, it did not apply to ex-girasdari or barkhali lands. But, by a circular memorandum dated May 5, 1959. Rule 17 was extended to lands covered by the Land Reforms Act and the Barkhali Abolition Act and, with a view to extending relief in assessment to deemed settled lands covered by the two Acts, the orders embodied in Government circular memorandum dated October 28. 1957 and the circular memorandum dated January 16, 1949 were applied to those lands also. On Rule 17 being inserted in the Land Revenue Rules of 1921 and its applicability being extended to the ex-girasdari and ex-barkhali lands cover of by the Land Reforms Act and the Barkhali Abolition Act, the Collector, in exercise of hispower under Section 52 read with Rule 17, fixed the rates of assessment for these two villages at reduced amounts. On such rules having been fixed, orders were issued to fix cash annuities payable to the petitioner in accordance with the rules of assessment fixed by the Collector and, since these rates were fixed for the year 1958-1959 cash annuities were order 1 to be paid according to the revised rates as and from that year and recoveries were ordered to be made in respect of excess payment made from that year.
9. Contentions (1), 5 and (6) raised in the petition involve the question as to construction of Sections 18 and 19 of the Barkhali Abolition Act, the nature and the scope of the right thereunder of a barkhalidar on the extinguishment of barkhali and the scope of the power of the Collector under Section 52 of the Code read with Rule 17 of the Rules 1921. These contentions can he expediently considered together . The rest of the contentions largely depend upon the answer to these contentions and in particular to the question, as to the scope and the nature of the right, of a barkhaltidar. The principal contentious of Mr. Nanavati were (1) that Sections 18 and 19 of the Act are self contained provisions, giving a right to receive cash annuity to a barkhalidar and (2) that that right cannot of curtailed or reduced by the Collector fixing revised rates of assessment under Section 52 of the Code, for Section 52 is only concerned with the State's right to assessment and cannot be used for reducing the annuity payable to a barkbalidar. We will, therefore, proceed to consider these questions first as the rest of the contentions, as aforesaid, depend upon answers in those questions.
10. The Barkhali Abolition Act was en acted, as its preamble shows, to abolish barkhali tenure just as its companion Act, the Land Reforms Act. was enacted at the same time for abolishing girasdari tenure Section 3 contains provisions providing an over-riding effect of the Act over other Laws, and lays down that the provisions of the Act and of the rules and orders made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the lime being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any Court or other authority Section 5 provides for the abolition of barkhali tenure and lays down that on the commencement of the Act or on the date of the notification issued under Clause (i) of Section 2 as the case may be, all rights, title and interest of all the barkhalidars in agricultural lands comprised in barkhali estate shall cease and be vested in the State free from all encumbrances subject to the provisions of this Act. Section 6 provides for an application by barkhalidars for allotment of land for personal cultivation, and Section 7 provides for an enquiry to be held by the Mamlatdar for the purpose of issuing an order of allotment. Section 10 provides for an application by the tenant for acquisition of occupancy rights and 8, 11 provides for an enquiry by the Mamlatdar on receipt of such application. Section 12 provides that after making such enquiry as may be deemed necessary, the Mamlatdar may, subject to any order of allotment under the provisions of this Act, pass an order specifying therein (a) the holding or part thereof in respect of which the tenant may be declared to be an occupant referred to in the Act as an occupancy holding, and (b) the assessment of such occupancy holding. Section 1 ft provides that a barkhalldar shall become an occupant in respect of land allotted to him under Section 7. These provisions show that on the barkhali tenure coming to an end, the rights under such barkhali tenure would become vested in the State and on an occupancy certificate issued to the barkhaltdar or the tenant, as the case may be, both would become occupants liable to pay assessment. Section 16 provides for the liability to payment of land revenue under the provisions of the Code and the Rules made there-under. Then follow Section 18 providing for payment to barkhalidars and Section 19 which provides a meaning to the expression 'assessment' which is a measure for the cash annuity payable under Section 18 Since a major part of the arguments addressed to us was based on the provisions of these two sections, it is necessary to cite them in full Section 18 provides as follows:
'Consequent upon the abolition of the Barkhali tenure under this Act, Government shall subject to the provisions of Section 18A pay to the barkhalidars shown in column one of the Schedule, case annuity, which shall be equal to one assessment in respect of the land in possession of their tenants, for the period specified against them in column two thereof' Section 19 provides:
'(1) For the purposes of this Act, assessment shall mean in relation to any land, until the village in which such land is situated is surveyed and settled, assessment calculated in an arithmetic average of assessment leviable in the surrounding and adjoining Khalsa or assessed non-Khalsa lands Or villages:
(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 .'
11. In regard to these two sections, the contention on behalf of the petitioners was that on the extinguishment of the rights of a barkhalidar, such a barkhalidar gets under Section 18 a right to payment of cash annuity which would be equivalent to one assessment. But that assessment which is to be fixed under Section 19 must be certain throughout the period of fifteen years or eighteen years, as the case may be, and cannot be variable. Once, therefore the assessment is fixed under Section 19, it remains the same throughout the period of payment andis not and cannot be, liable to any variation on a subsequent alteration of the assessment made by the Collector under Section 52 of the Code For this purpose, reliance was placed on the meaning of the word 'annuity' in Burrows' words and phrases. Volume I. page 189. namely. 'An annuity is a right to receive de anno in annum a certain sum; that may be given for life. or for a series of years' Mr. Nanavati argued that the fact that the Legislature has advisedly used the expression 'cash annuity' suggesting certainty as to the sum payable, coupled with the absence of the words, namely, 'for the respective years' after the words 'one assessment' in Section 18 indicates that the amount of cash annuity and assessment, once fixed by the Mamlatdar. was to be unchangeable and was to apply throughout the period of payment. Therefore, he argued, on a proper construe lion of Sections 18 & 19 when the assessment is fix ed by the Mamlatdar under Section 19 a barkhalidar would gel a right under Section 18 to get rash annuity on the basis of the first assessment fixed by the Mamlatdar and that the amount payable as cash annuity cannot be reduced by lowering the rates of assessment, in subsequent years. The question is whether there, is merit in this contention.
12. Section 18 no doubt deals with payment to a barkhalidar, and under that section a barkhalidar gets the right of being paid to she extent and in the manner provided therein The section is clear as to the extent of the payment namely, that the cash annuity is to be equivalent to one assessment and that assessment is the one defined by Section 10 Therefore on the question as to what that assessment is one has necessarily to turn to Section 19. The question is that assessment variable and has that assessment anything to do with the assessment payable by an occupant, whether be a tenant or a barkhalidar under Section 162. As we have already seen under Section 16 the liability to pay assessment by both the classes of occupants, namely, the tenant and the barkhalidar to whom an occupancy certificate has been issued, is under the provisions of the Code and the rules made thereunder Section 19, it will be noticed, commences with the words 'for the purposes of this Act' which must mean that the assessment, equal to which the cash annuity is payable under Section 18, is the assessment according to the meaning given to it in Section 19, is that assessment, as defined by Section 19. a fixed and an immutable assessment, once it has been fixed by the Mamlatdar on the principle of arithmetic average? Section 19 does not appear to support that interpretation, for, the words on that section themselves show that the assessment fixed by the Mamlatdar is not permanent but subsists until the lime the village in which the land is situated is surveyed and settled. Therefore once the village in which such land is situated is surveyed and settled, the assessment 'for the purposes of this Act' i.e. including the purposes of Section 18 though fixed initially by the Mamlatdar, is liable to give way to an assessment made as a result of survey and settlement of the village wherein the land in question is situated. It seems, therefore, somewhat clear that where the land is not surveyed and settled, the Mamlatdar has for the time being to fix assessment calculated on an arithmetic average of assessment leviable in the surrounding Khalsa or assessed non-khalsa lands or villages. From the use of the word 'until' in Sub-section (1) before the words 'the village in which such land is situated is survey ed and settled' it is clear that such assessment is only provisional and is liable to give way to an assessment made on survey and settlement. That it is that assessment fixed under Section 19 the equivalent of which is payable as cash annuity under Section 18 is certain from the words in Section 18 itself and, in particular, the opening words of Section 19. Therefore, the assessment fixed by the Mamlatdar is to subsist only until survey and settlement of the village in which the land is situated and not throughout and, consequently it is not something which is immutable throughout the period of payment It is equally clear that the assessment which is to be fixed on survey and settlement would be under the provisions, of the Code and the rules made thereunder, for, there is not, and cannot be, from the nature of the Barkhali Abolition Act, any provision in the Act as to survey and settlement and the fixation of rates of assessment on such survey and settlement . The fixation of rates of assessment on survey and settlement of the village, though made under the Code and the rules made thereunder, would be the assessment for the purposes of this Act under Section 19, and that being so the cash annuity payable under Section 18 and which is equal to one assessment, would then have to he equal to the assessment fixed on survey and settlement. Thus, from the language used in Sections 18 and 19, it is clear (1) that the obligation of the State is to pay to the barkhalidar cash annuity equal to one assessment.(2) that the assessment under Section 19 would be in the initial stage assessment fixed by the Mamlatdar based on arithmetic average, and(3) on survey and settlement the cash annuity would be equal to the assessment based on survey and settlement fixed under the provisions of the Code Sections 18 and 19 thus contemplate that the assessment is liable to vary the assessment by the Mamlatdar based on an arithmetic average giving way to THE assessment made by the Collector when the village in which the land is situated is surveyed and settled. It will also be noticed that even where the village is not surveyed and settled and the Mamlatdar has fixed assessment on the basis of arithmetic average the proviso to Section 19 lays down that where such assessment is may festly unfair, the State Government has the power to modify it keeping, of course the principle of arithmetic average in view the proviso does not lay down that such modification need take place immediately Prima facie therefore, the assessment fixed by the Mamlatdar may be modified at any time when the Government comes to the conclusion that the assessment calculated on an arithmeticaverage by the Mamlatdar is manifestly unfair. Thus the assessment fixed by the Mamlatdar is liable to be changed (1) under the proviso when the Government modifies it, and (2) when the village is surveyed and settled. It follows, therefore, that the argument that the assessment under Section 19 made by the Mamlatdar is something which is unchangeable is not correct. Since it is changeable and the cash annuity having to be equal to one assessment. Sections 18 and 19 contemplate that when such a change occurs, the cash annuity is also liable to change.
13. It is true that cash annuity, by its very nature, has an element of certainty. But then, it cannot be said that the annuity in this case is not certain, for, Section 18 provides a measure which is certain, viz., that the annuity has to be equal to one assessment, whatever that assessment for the time being is. What Section 18 does is to provide two things, (1) a right to payment by way of cash annuity, and (2) the measure for that annuity, namely, of the assessment. The right given under Section 18 is the creature of the statute and has therefore to be ascertained in accordance with the provisions of that statute The provisions of the statute are fairly clear, namely, that a barkhalidar will be paid cash annuity equal to one assessment as defined by Section 19. Under Section 19, that assessment is the one fixed by the Mamlatdar until that is substituted by the rates of assessment fixed on survey and settlement of the village in which the land is situated, or when such assessment is modified by the Government under the proviso to Section 19. The language of Section 19 itself indicates that two kinds of assessments are contemplated, made by two different authorities, on two different principles One is by the Mamlatdar on the basis of arithmetic average and the other on a survey and settlement made under the Code Since the right to get the cash annuity is the creation of the statute and is therefore, governed by the statute and since the annuity payable annuity for each year is equal to one assessment, if the assessment is varied the annuity payable under the statute is also liable to vary, depending upon what the assessment is during the year in which the annuity is payable By its very nature, cash annuity is an annual payment and so also the assessment which is tin annual occurrence As the annuity is equal to one assessment, the quantum of assessment must govern the quantum of the annuity. In this view, it would not be possible to sustain the contention that cash annuity is not liable to change even if the assessment, on a survey and settlement of the village, is reduced, or that the assessment fixed by the Collector on survey and settlement would not be the assessment within the meaning of Section 19 for the purposes of payment of cash annuity, or that the assessment fixed under the Code and the rules made thereunder would not affect the annuity payable under the Barkhali Abolition Act. Sections 16, 18 and 19 of the Act clearly show that the Code and the rules made thereunder are not irrelevant for the purposes ofthe Act notwithstanding the over-riding effect given to the provisions of the Act under Section 3, For, Section 16 itself provides in express terms that the liability to pay assessment is under the Code, and similarly Section 19 in express terms provides that an assessment made by the Mamlatdar thereunder is to submit until survey and settlement is made, such survey and settlement having to be made under the Code, the fixation of rates of assessment also having to be made under the Code and such assessment also being the assessment under Section 10 for the purposes of the Act, i.e. inter alia for the purposes of Section 18.
14. In support of his proposition that there is only one assessment for the purposes of Sections 18, 19, and that is by the Mamlatdar on the basis of arithmetic average and that that assessment is final for the purpose of determining cash annuity, which once fixed cannot be altered on a subsequent assessment even when that is made on survey and settlement. Mr. Nanavati relied on the rules as to assessment contained in Chapter VI of the Barkhali Abolition Rules, 1951 made under Section 35 of the Act. Support was sought in these rules to show that even when the State Government modifies THE assessment fixed on arithmetic average by the Mamlatdar, under the proviso to Section 19 such modification has to be made at the time when the Mamlatdar determines the assessment and the modified assessment would take effect from September 1. 1951 when the Act extinguished the barkhali and such modification can be made only at that stage and not thereafter. To consider this contention, it will be necessary to turn to these rules. Rule 83 provides the procedure to be followed by the Mamlatdar in fixing the assessment on the principles of arithmetic average and also gives therein an illustrated example as to how arithmetic average is to be worked out. It appears that the draftsman felt that a mechanical fixation of assessment on the basis of arithmetic average might perhaps result in injustice and therefore be introduced in Rule 83 a proviso empowering the Mamlatdar to send a report if the Government if he felt that such assessment was manifestly unfair, and empowered in that case the Government to modify the assessment so calculated by the Mamlatdar. Since the assessment so worked out would be subject to such modification, the assessment, if modified, would still be the assessment by the Mamlatdar and would take effect from September 1, 1951. That is one stage where the Government is authorised to modify. Under Rule 83-A the Momlatdar has to publish the assessment worked out by him under Rule 83 by affixing a copy thereof at the village Chapra or any conspicuous place of the village and at his office. Even after such publication, if the Mamlatdar feels that the assessment so fixed by him is manifestly unfair, he has to report to the Government through the Collector, and the Government is authorised to modify it. That is the second stage where modification can be made by the Government, and since the assessment is still not finalised, the modified assessment would lake effect asfrom September 1, 1961. Under the proviso to Rule 83-A, an objection can be fixed by any person within two months from the date of publication by the Mamlatdar on the ground that the assessment is manifestly unfair. The Mamlatdar has in that event to send his report on such objection to the Government and the Government can modify the assessment on such objection The modified assessment once again would take effect from September, 1, 1961 as the assessment by the Mamlatdar till then cannot yet be said to be finalised. Rule 85 provides for an appeal before the Collector and a revision before the Revenue Tribunal, and Rule 86 provides that the final order in appeal or revision has to be recorded by the Mamlatdar in the relevant registers. Rule 83 and onwards thus lay down the procedure to be followed by the Mamlatdar in fixing the assessment under Section 19 on the principles of arithmetic average, the power of the Government to modify it where it is manifestly unfair, and for the right of appeal and revision by any one affected by sued assessment. It is evident from these rules that they deal with the stage when the Mamlatdar fixes the assessment, and since the assessment is not finalised until its modification by the Government or till an appeal or revision therefrom, as the case may be, is disposed of, it is only the modified or the finalised assessment that would be the assessment made under Section 19. But those rules provide for the modification or revision and finalisation at that stage It would be too much to say that because there are no rules framed for subsequent modification by the Government on the ground that the assessment is manifestly unfair, the Government is precluded from modifying it at any subsequent stage There is no such limitation in the proviso to Section 19 and to contend that the Government is not empowered to modify the assessment at a later stage would amount to inducting into the proviso a limitation which the draftsman has not imposed in it.
15. In this connection. Mr. Nanavati drew our allention to an unreported judgment of the High Court of Bombay in a Letters Patent Appeal in Jadeja Jagatsinhji Dipsinhji v. Director of Land Records and Settlement Officer, No. 1 of 1951, dated 9-12-1957 (Born) by Chainani, J., as he then was. and Patel. J. against the decision of M. C. Shah, J. who had rejected the special civil application filed by the appellants who were the girasdars under the Land Reforms Act, 1951. The appellants there were the girasdars of lands situate in Sajjanpur village in Morvi Taluka. This village had not been surveyed. On September 1, 1951 the Land Reforms Act came into force and which provided for the acquisition of occupancy rights by tenants. On January 29, 1962. fifty-one tenants made applications under Section 28 if the Act for acquisition of occupancy rights. As required by that section, they also deposited certain amounts in the treasury. The Act provides for payment of compensation to girasdars for the loss of occupancy rights. Since compensation it fixed on the basis ofassessment, provision has been made in the Act for the determination of assessment in cases of unsurveyed villages. Under Section 44 of the Act, assessment in the case of unsurveyed villages is fixed on the basis of assessment leviable in the surrounding and adjoining Khalsa or assessed non-Khalsa lands or villages. Sub-section (2) of Section 44 gives power to the Government to modify the assessment if it find that the assessment fixed on the basis of the assessment leviable in the surrounding and adjoining villages is manifestly unfair. As required by the Act, the Mamlatdar made anenquiry and, on August 24, 1952 he fixed provisional assessment at Rs. 3-3-4 per acre, and published the assessment and invited objections thereto from the persons concerned. No objections were filed by the tenants, but the appellants submitted their objections and asked for increase in the rates. The Government considered their objections and increased the assessment to Rs 3-9-7 per acre. The revised assessment was published in the village and on September 23, 1953 the Mamlatdar made an order directing that occupancy rights should he transferred to the tenants and that occupancy certificates should be issued in their names on their paying the balance of the amount of compensation payable under Sections 28 and 33 of the Act on the basis of the assessment being Rs. 3-2-7 per acre No appeals were filed against the orders passed by the Mamlatdar, and the appellants were paid instalments of compensation on the basis of the revised compensation, namely, Rs 3-9-7 per acre in the years 1952 to 1954. It appears that some of the tenants thereafter made representations and, on March 2, 1954 the Director of Land Records informed the Mamlatdar that the rate of assessment for this village calculated on the basis of average rate per acre in the adjoining villages worked out at Rs 2-16-4 and he directed the Mamlatdar to publish the aforesaid rate and to invite objections thereon The Mamlatdar accordingly issued a notification on March 9, 1964 A few days thereafter the appellants filed a special civil application under Article 226 of the Constitution contending that the assessment having once been fixed under Section 44 and having already been revised by the Government on the ground that it was manifestly unfair, it could not be revised by the Government again on the same ground, and prayed for a declaration that the assessment fixed at Rs. 3-9-7 per acre was final, and for a direction that the respondents should pay to the appellants compensation a that rate Section 28(1) of the Land Reforms Act provides for an application being made by the tenant for the acquisition of occupancy rights in his holding. But before making such an application he has to deposit in the treasury an amount equal to six times the assessment, and, under Sub-section (3) thereof, to attach to his application a receipted chalan showing the payment into the treasury of that amount, Section 30(1) provides that after making an enquiry the Mamlatdar has to pass an order specifying therein three things, (a) the holdingIn respect of which the tenant may be declared to be an occupant, (b) assessment on such occupancy holding, and (c) the amount payable by the tenant to the girasdar at compensation in respect of such occupancy holding. Sub-section (2) of Section 30 provides that if the amount deposited by the tenant falls short of the amount specified in Clause (c) of Subsection (1), the Mamlatdar can direct the tenant to deposit the balance within inch timeas may be specified, Sub-section (8) then provides that when the tenant has deposited the required amount, the Mamlatdar has to Issue an occupancy certificate in respect of the occupancy holding. Section 33 provides for payment of compensation to the girasdar. A part of this compensation is payable by the tenant and that is equivalent to six times the assessment and which the tenant is required to deposit before he makes an application for occupancy rights. Section 33(1) gives right to the girasdar to withdraw the amount specified in the order of the Mamlatdar as being payable by the tenant. Sub-section (2) of that section provides that in addition to the compensation paid by the tenant in respect of the holding, the Government shall pay to the girasdar as compensation every year for fifteen years an amount equal to the assessment of the holding as fixed by the Mamlatdar under Clause (b) of Sub-section (1) of Section 30 Sub-section (3) provides that an instalment under Sub-section (2)shall become due and payable on February 1 every year, the first instalment falling due on February 1 immediately following the date on which the occupancy certificate becomes effective. In the case before the High Court, the Certificates become effective on August 1, 1951 under Section 32 of the Act. The appellants were paid the first instalment on April 29, 1952 As already seen. Section 44 of the Act provides for the determination of the assessment in the case of lands which are not surveyed and settled. and is in the same language as Section 19 of the present Act, and the proviso to that section also empowers the Government, as the proviso to Section 19 of the present Act does, to modify the assessment if it finds that as calculated by the Mamlatdar it is manifestly unfair Presumably the Government modified the assessment and reduced it to Rs. 2-15-4 under the power reserved to it by the proviso to Section 44. The High Court held that compensation which the girasdar was entitled to receive either from the Government or from the tenant was to be determined on the basis of the assessment calculated by the Mamlatdar and specified in his order passed under Section 30. and there being no provision in the Act empowering the Mamlatdar or any other authority to revise the order passed by him under Section 30 and to alter the amount of compensation every time the assessment was revised under Section 44 or under some other provision of law the subsequent revision of the assessment would not affect the amount of compensation payable to the girasdar. The reasoning adopted by the High Court for this conclusion was that compensation to which the girasdar was entitled forthe acquisition of his occupancy right was made up of two parts, one payable by the tenant and the other by the Government. Under Section 28, the amount payable by the tenant was equal to six times the assessment Under Section 30(1) the Mamlatdar had to specify in his order the assessment on the land and also the amount payable by the tenant to the girasdar as compensation. Therefore, the Mamlatdar had to determine not only the assessment, but also the amount payable by the tenant as compensation. Compensation payable by the tenant was, therefore, the amount specified in the Mamlatdar's order calculated on the basis of the assessment specified in the same order which must be the assessment in force at the dale of the order of the Mamlatdar. A subsequent change in the assessment would not therefore, affect the amount of compensation determined by the Mamlatdar as being payable by the tenant. This being a specific amount it cannot be altered on account of an alteration of assessment merely because it was fixed on the basis of the assessment Compensation payable under Section 33(2) by the Government is payable for fifteen years equal to the assessment of the holding as fixed by the Mamlatdar under Section 30(1)(b). The amount payable by the Government every year was, therefore the assessment specified in the Mamlatdar's order and not the assessment in force at the time of the demand was made
16. II will be observed that the scheme of the Land Reforms Act is totally dissimilar to the scheme in the present Act, and the reasoning in the decision shows that the conclusion arrived at by the High Court was based on the specific words used in the sections set nut above. Under Section 30 of that Act, the amount payable by the tenant was six times the assessment fixed by the Mamlatdar and specified by the Mamlatdar in his order, and it was that amount that the tenant had to deposit and which the girasdar was entitled to withdraw. Similarly, under Section 33(2), the Government had to pay compensation every year for a period of fifteen years, the amount so payable being an amount equal to 'the assessment as fixed by the Mamlatdar' under Section 30(1)(b). Therefore, once the assessment was fixed by the Mamlatdar. the amount of compensation became fixed also and which the Government was obliged to pay, and not any other amount. That being so. the High Court held that thatamount could not be varied even if there was modification of the assessment in any subsequent year. This decision cannot apply to the present case because the scheme and the language of Sections 18 and 19 are totally different from the language and the scheme of Sections 28, 30 and 33 of the Land Reforms Act. It will be noticed that though the language of Section 44 of the Land Reforms Act is similar to that of Section 19 of the Act before us, the learned Judges of the Bombay High Court did not decide that the Government thereunder had no right to modify the assessment fixed by the Mamlatdar. They, on the contrary, left that question openand the only thing that they decided was thatin view of the express language of Sections 28, 80 and 38 and the scheme of the Land Reforms Act, 3 subsequent modification of assessment by the Government would not affect the amount of compensation payable to the girasdar after the Mamlatdar had fixed the assessment and compensation on the basis of such assessment payable by the tenant was fixed and specified in the order, deposited in the treasury and allowed to be withdrawn by the girasdar. This decision, therefore, is not an authority for the proposition that under the present Act once an assessment is fixed by the Mamlatdar. it is unchangeable or that cash annuity for a period of fifteen years or eighteen years or for life, as the case may be is not variable although the assessment may be varied either when survey and settlement lake place or where the Government modifies it under the proviso to Section 19.
17. The conclusion which we are inclined to arrive at is supported by the fact that unlike the scheme for compensation under the Land Reforms Act, the scheme of the present Act is that the barkhalidar is to be paid annually as and by way of cash annuity an amount equal to one assessment and, therefore, any change that lakes place in such assessment is bound to affect the quantum of the annuity payable to him Mr. D.D. Vyas appearing for the petitioners in Special Civil Application No. 588 of 1963 and three other petitions at one stage however, argued that the provisions as to payment of compensation to an ex-girasdar under the Land Reforms Act and of cash annuity to an ex-barkhalidar under the present Act are tile same and therefore, just as, compensation under the Land Reforms Act, once fixed by the Mamlatdar cannot be reduced by a subsequent variation in the assessment, the amount of cash annuity also cannot be reduced by a subsequent reduction of assessment When the provisions of Section 28(1) of the Land Reforms Act were pointed out to him in order to show that the Legislature had used a phraseology in that section different from the one used in Section 18 of the present Act, i.e. the words 'the assessment' in Section 28 of the Land Reforms Act and the words 'one assessment' in Section 18 of the present Act, he argued that even if the legislature bad used the same phraseology, it would not still have made any difference. He also argued that whether for call payment tinder the Land Reforms Act compensation or payment under the present Act cash annuity, it again made no difference. In our view, such an argument cannot be accepted, for an examination of the two Acts clearly shows that though they were simultaneously enacted, each of them deals with a different class of tenureholders and provides for compensation in a different manner and under a different scheme and. therefore the Legislature advisedly need a different phraseology and phraseology used in each of them has a meaning disclosing the true construction to be given to it. The argument loses sight of the fact that the girasdari tenure is different front barkhali and the legislaturebeing aware of this difference, dealt with each of them in the two Acts differently making a different scheme of payment. Whereas a girgsdar under girasdari tenure had proprietary interests in the land held by him, a barkhalirlar had no such proprietary rights in the land held by him. As stated in Bade Saheb v. State of Saurashtra, (S) AIR 1955 San 80, at p. 83, barkhalidars were entitled under their grant to usufruct only, and the feature of a barkhali grant was that it was resumable at will and. therefore, barkhalidars had no proprietary interests in their holdings. That being so, the Legislature was aware that while under the Land Reforms Act what it was doing was extinguishing the proprietary interests of a girasdar in the land held by him, in the Barkhali Abolition Act what it was doing was to extinguish the rights of barkhalidar to usufruct only. Therefore in the Land Reforms Act, the Legislature provided for payment of compensation for the abolition of proprietary rights, while under the Act before us it provided for cash annuity payable for a certain period for the abolition of rights to usufruct only in respect of the land held by the tenure-holder The difference in the language of the two Acts, therefore is not accidental but deliberate A distinctive treatment on the abolition of the respective rights is also notifiable in the two Acts.
18. Since proprietary rights in lands held by a girasdar vested in him and these rights were abolished by the Land Reforms Act on the extinguishment of girasdari, a provision was made in Section 28 for transference of occupancy rights from the gjrasdar to the tenant Therefore, under Section 28. any tenant could apply for occupancy rights and the Mamlatdar had to issue an occupancy certificate in every case where the tenant fulfilled the conditions contained in that section That is not so in the Act before us. Occupancy rights never vested in a barkhalidar but in the State and. therefore, there was no question of a transference of those rights from a barkhalidar to his tenant. Consequently, under Section 12 of the Act. the Mamlatdar has been given a discretion to issue occupancy certificate and therefore it is not as if occupancy certificates have to he issued in favour of all the tenants applying for occupancy rights
19. Under the Land Reforms Act, the scheme is that the girasdar is paid compensation partly by the tenant and partly by the State As already seen, under Section 28(1), a tenant applying for occupancy certificate has to pay an amount equal to six times 'the assessment payable in respect of agricultural land included in the holding and under Sub-section (3) thereof he has to deposit that amount in the treasury and produce a chalan therefor along with his application Under Section 30, when the Mamlatdar passes his order issuing an occupancy certificate, he has to mention therein 'the assessment on such occupancy holding' and also specify the amount payable by the tenant, i.e.. six limes that assessment and the girasdar is given the right to withdraw that whole amount immediately on the issuance ofthat certificate. Section 38 provides for payment of compensation by the State and that compensation is payable in fifteen years divided into fifteen annual instatment, each instalment being equal to 'the assessment on the holding as fixed under Section 30(1)(b)'. The assessment so fixed is the assessment worked out according to Section 44, i.e., fixed on the basil of arithmetic average until the village in which the land is situated is surveyed and settled. The expression 'the assessment' therefore ii the assessment fixed by the Mamlatdar under Section 44 and specified in his order under Section 30(1)(b). and compensation payable by the tenant under Section 28 and by the State under Section 33(2) is six and fifteen times respectively of that assessment. Once, therefore, that assessment is fixed, compensation payable to him is not only crystallized but specified in the order of the Mamlatdar, and a right to receive that compensation immediately accrues to the girasdar and therefore that compensation cannot be varied on a variation subsequently made in the, assessment. The words used in Section 18 of the Act before us are different in that the section provides not for payment of a sum equal to 'the assessment' fixed by the Mamlatdar, as in the case of Sections 28 and 33(2) of the Land Reforms Act, but equal to 'one assessment'. If the Legislature intended to give the same meaning to the two expressions, namely, 'the assessment' and 'one assessment', there was no reason why it should have resorted to different language in the two Acts when they were enacted at the same time and had a similar design to extinguish the two tenures. Such an intention cannot be attributed to it, for, the Legislature was conscious that it was abolishing two tenures of a different nature and each required a differential treatment and therefore provided in one case compensation fixed at the time when there was transference of occupancy rights from the girasdar to his tenant and annuity payable according to the assessment prevalent at each time such annuity became annually payable The effect of the use of different phraseology, coupled with the difference in the scheme of payment in the two Acts, in our view, supports the construction which we have placed on Sections 18 and 10 of the Act before us
20. In support of the contention that assessment means the assessment determined on arithmetic average by the Mamlatdar and not any other assessment, Mr. Chhaya in Special Civil Appln. No. 1017 of 1963 argued that If we were to construe the words 'one assessment' in Section 18 as meaning assessment in respect of the lands at the time when they were in possession of the tenants of the barkhalidar, the word 'assessment' must mean that assessment which subsisted on September 1, 1651, because on the extinguishment of barkhali, the relationship of landlord and tenant ceased at between the barkhalidar and his tenants. Considering, however, the other provisions and the distinctive scheme of the Act as compared with the companion Act, namely, the Land ReformsAct, 1961, it is not possible to accept this interpretation. What is meant by these words is that the assessment is assessment in respect of the lands which, on the date of the operation of the Act, were in possession of the tenants. In other words, the words, 'in possession of their tenants' are not used to indicate a point of time in respect of assessment but are used as descriptive of the lands in respect of which assessment is to be fixed by the Mamlatdar under Section 19 of the Act.
21. Before we part with this part of the argument, we may dispose of one more contention raised by Mr. Nanavati based on Section '28 of the Saurashtra Agricultural Debtors' Relief Act, XXIII of 1954. The preamble to that Act states that the Act was passed for amelioration of conditions of the girasdars and barkhalidars and for rehabilitating them since the estates of these two classes of persons had diminished and their paving capacity had been reduced. Section 28 of that Act defines 'paying capacity' and the explanation thereto inter alia provides that in the case of a barkhalidar, cash annuity payable to him under Section 18 of the Barkhali Abolition Act, 1951 valued at four per cent per annum shall be taken into consideration while deciding his paying capacity. The argument was that since the paying capacity of a barkhalidar under Section 28 has to be determined on the capitalised value of the cash annuity payable to him, the annuity must be something which is fixed and definite and not liable to change as the assessment changes from time to time. The premise of this argument is that assessment changes from time to time. That is not so. What is forgotten is that the Government has the power to modify the assessment only when it is of the opinion Dial the assessment fixed by the Mamlatdar is manifestly unfair, and even where the Government modifies such an assessment, it has to keep in mind the principle of arithmetic average laid down in Section 19. It is, therefore, not as if the assessment can be frequently altered or that it can be altered at the whim or the sweet-will of the Government. Besides, when the Debtors' Relief Court has to decide the paying capacity of a barkhalidar, it would calculate the capitallged value of the annuity prevalent at the time of such decision. The function, however, to determine the paying capacity on the basis of the annuity cannot mean that the amount of the annuity is immutable and unchangeable. It if true that the Debtors' Relief Act was passed in view of the consequences which arose as a result of the enactment of the Land Reforms Act and the Barkhali Abolition Act. But the provisions of the Debtors' Relief Act cannot govern the construction of a provision in another Act whose object is wholly different. The construction of Sections 18 and 19 urged by Mr. Nanavati and the contention that once the Mamlatdar has fixed the rates of assessment on arithmetic average under Section 19 and calculated the annuity payable to the barkhalidar the assessment and the annuity become fixed and crystallised and the right to receive the fame accrues to the barkhalidar, which rightcontinues until the end of the prescribed period, cannot be accepted.
22. The argument next submitted by Mr. Nanavati was that the expression 'surveyed and settled in Section 19 meant survey and settlement made under Chapters VII! and VIII-A of the Land Revenue Code, that when the rates of assessment were revised under Section 52 by the Collector, those rates were not fixed upon such survey and settlement and therefore, there had not been in the instant case any survey and settlement and consequently the rates of assessment fixed by the Mamlatdar in 1951-1952 still continue and the annuities payable to the petitioners, therefore, had to be paid on the basis of the rates of assessment fixed by the Mamlatdar. He also contended that since the expression used in Section 19 is survey and settlement, the process of survey and settlement has to be one continuous one and that process must consist of operations provided for in Chapter VIII and Chapter VIII-A of the Code and therefore, the assessment fixed by the Collector under Section 52 not being based on survey and settlement under Chapters VIII and VIII A of the Code, the assessment made by him was not the assessment within the meaning of Section 19 of the Act Chapter VIII and Chapter VIII-A of the Code deal with survey and settlement respectively. Section 95 provides that it shall be lawful for the State Government, whenever if may seem expedient, to direct survey of any land in any part of the area to which the Code extends, with a view to the settlement of the land revenue, and to the record and preservation of rights connected therewith, and such survey shall be called a revenue survey Such survey may extend to the lands of any village, town or city, generally, or to such land only as the Government may direct. Section 106 empowers the State Government to direct at any time a fresh survey or any operation subsidiary thereto, and Section 108 provides that the survey officer or the settlement officer on the occasion of making or revising a settlement of land revenue, has to prepare a register called 'the settlement register', showing the area and assessment of each survey number and such other records as maybe prescribed by the State Government in that behalf. Section 117C. which appears in Chapter VIII-A. defines 'settlement' as meaning the result of operations conducted in a zone in order to determine land revenue assessment. Sub-section (1-A) of that section slates that a zone means a local area comprising a taluka or a group of talukas or portions thereof of one or more districts, which in the opinion of the State Government or an officer authorised by it in this behalf is contiguous and homogeneous in respect of physical configuaration, climate and rainfall, principal crops grown in the area and soil characteristics Subsection (4) defines 'classification value' as meaning the relative valuation of land as recorded in the survey records having regard to its soil, water and other advantages, and 'class of land' is defined as meaning any one of the classes of land namely, dry crop,rice or garden land. Section 117-B empowers the State Government to direct at any time a settlement, called an original settlement, of the land revenue of any land of which a revenue survey has been made under Section 95. It also empowers the Government to direct at any time a fresh settlement, called a revision settlement, of the land revenue of such land, provided that no enhancement of assessment shall take effect before the expiration of the settlement for the time being in force. It would appear from these sections that survey means classification and measurement of land, and settlement contemplated by Chapter VIII-A means the settlement of land revenue assessment of a Zone or of any land of which revenue survey has been made under Section 95 or not. Section 52 on the other hand deals with land in respect of which settlement has not been fixed under Chapter VIII-A. The section provides that on all lands which are not wholly exempt from the payment of land revenue and on which assessment has not been fixed under the provisions of Chapter VIII-A, the assessment of the amount to be paid as land revenue shall, subject to the rules made under Section 214, be fixed at the discretion of the Collector and the amount due according to such assessment shall be levied on all such lands The question is, has the assessment fixed by the Collector under Section 52 been made on survey and settlement awl whether such assessment can 'for the purposes of this Act' fall under Section 19 of the Barkhali Abolition Act? As already stated, by a notification dated May 20, 1959 the Government of Bombay substituted Rule 17 by another rule which took in the lands covered by the Land Reforms Act and the Barkhali Abolition Act also and therefore, the new rule applied to all agricultural lands in respect of which there was no survey under Chapter VIII and no settlement under Chapter VIII-A. The assessment to be fixed under Section 52 read with this rule is to have effect only till survey and/or settlement is made under Chapters VIII and VIII-A. Rule 17, as introduced on and from May 20, 1959, inter alia provides that the Collector has to arrange to form groups of villages homogeneous as far as possible in respect of physical configuration, climate and rainfall, prices and yield of principal crops, and then classify the lands into three classes, namely, dry crop, rice and irrigated land. The Collector has then to determine the area of the pre-reorganisation State of Bombay, excluding the transferred territories, to which these crops can be compared on the basis of homogeneity of soil and crop pattern and fix the respective rates of assessment per acre for the dry crop and rice classes of land in each group bavins regard to the respective rate of assessment of such classes of land prevailing in the area determined as 'above The rule further provides that he has to fix the rate of assessment per acre for the irrigated class of lands, namely, for lands irrigated by wells, at a rate not exceeding two limes the rate of lands classed as dry crop in the same group and fur lands Irrigated by tank or canal, at a rate notexceeding two times the rate fixed for lands irrigated by wells in the same group. Where survey and classification of each individual holding has already been made under Chapter VIII of the Code, he has to fix for earn individual holding assessment payable by the holder thereof on the basis of survey and classification so made as the rate fixed. But where such survey and classification of each individual holding has not been made under Chapter VIII of the Code, he has to classify each class of land first into dry crop, rice and irrigated, and then into three sub-classes namely, good, medium and inferior, and after taking into consideration the yield of the principal crops produced or the classification that may have already been adopted for the purpose of fixation of Udhad or Vighoti, fix for each individual holding assessment payable by the holder thereof by applying the rale appropriate to the group and class of lands determined as above in the proportion therein set out. Sub-rule (5) of the rule provides that the assessment fixed by the Collector shall remain in force for the current revenue year and shall remain thereafter in force until it is revised by the Collector in accordance with Sub-rule (6) or till the lands to which the rule applied are settled under Chapter VIII-A of the Code, whichever is earlier. Sub-rule (6) of the rule provides that in revising the rate or amount of assessment, the Collector shall have regard to the several factors stated therein. It is clear from Section 52. itself that the power of the Collector to fix assessment is limited to lands in respect of which there has been no settlement under Chapter VIII-A, and furthermore lie has to exercise this power subject to the rules made under Section 214 of the Code. It is equally clear from Rule 17 that such assessment is to be made after classification of lands and fixing them in groups comparable with such groups or lands in other parts of the State. Survey and settlement under Chapters VIII and VIII-A mean classification and fixing of assessment according to the class in which the village or the lands situated therein fall. That is also what is enjoined upon the Collector under Section 52 read with Rule 17 except that whereas under Chapter VIII-A assessment is done zone-wise, under Section 52 read with Rule 17 what the Collector has to classify and assess are lands in respect of which there has not been survey and/or settlement under Chapters VIII and VIII-A. It is clear that the object of Section 82 and Rule 17 was to have classification and assessment made until survey and settlement are done under these two chapters. so that in the meantime the lands not surveyed and/or settled can be assessed on a scientific basis and uniformly with the rest of the lands in the pre-reorganisation State of Bombay. Though classification and assessment done under Section 52 read with Rule 17 are provisional and in respect of lands and not in respect of a zone, there can be no doubt that the operations done by the Collector under Section 62 are operations of survey and settlement. The question is, what is the meaning of the expression'surveyed and settled' used in Section 19 of the Barkhali Abolition Act? The contention urged by Messrs. Nanavati, Vyas and Hatni was that when the Act was passed, Rule 17 was not in the Land Revenue Rules, 1921 and therefore, the only survey and settlement that the Saurashtra Legislature knew of was survey and settlement as provided in Chapters VIII and VIII-A of the Code, and therefore, when Section 19 speaks about lands surveyed and settled, it means lands surveyed and settled under those two chapters of the Code, Consequently, the fixation of assessment by the Collector under Section 52 read with Rule 17 would not constitute survey and settlement within the meaning of Section 19 of the Act and. therefore, the assessment which would still prevail for the purposes of Sections 18 and 19 would be the assessment made by the Mamlatdar on the principle of arithmetic average It was also urged by Mr. D.D. Vyas that the fixation of rates of assessment under 'S. 52 by itself would not amount to settlement, for, unless that fixation had gone through the operations of settlement as provided by Chapter VIII-A. such assessment would not be settlement.
23. In our view, neither of these two contentions can be upheld, for, they are based on a narrow view of the expression 'survey and settlement' used in Section 19. Broadly speaking, Section 19 does not provide that survey and settlement of lands must be survey and settlement under Chapters VIII and VIII-A of the Code Prima facie, therefore, if there is survey and settlement, that would be sufficient compliance of Section 19. No doubt, Section 117C of the Code defines 'settlement' and under that definition the assessment settled can be one which goes through the operations set out in that chapter, including the approval of the State Legislature. But it must be remembered that settlement is not necessarily the settlement as defined by Section 117C. The settlement which has to pass through the operations in that chapter is the one which lakes place under that chapter and is ordinarily for a zone, and since it would affect the entire zone it was presumably thought necessary to have the legislature's approval. Unfortunately we have not got Baden Powell's work on The Land Systems of British India, but we find a quotation from the 1892 Edition, Volume I at page 943 in Gupte's Commentary on The Bombay Land Revenue Code (1962 Edition, at page 374) according to which settlement simply means the process of determining the amount of land revenue payable to Government, and the person or the body whom Government recognizes as entitled to be proprietor or holder according to the Land Revenue Code, liable to pay the revenue is said to be 'settled with' or to hold the settlement. It is, therefore, not correct to say that the only survey and settlement are those done under Chapters VIII and VIII-A of the Code. If the land is surveyed and settled under any other provision of the Code, it would still be land surveyed and settled within the meaning of the Code and also Section 19 of the Act. It it true that Section 68 talks of assessment of landrevenue and not of settlement, but Section 64 makes it clear that such settlement it regarded by the Legislature as settlement. Under Section 54 when assessment is made under Section 52, the assessment of each portion of the land or survey number shall be made with the person who under Section 126. is primarily responsible to the State Government for the same, and that would be. as Baden-Powell has described, 'settled with the person primarily responsible for payment'. The operations of assessment which under Section 52 have to go through under Rule 17 would, in substance and effect, amount to survey and settlement and such survey and seltlement. in the absence of any words in Section 19 of the Act that they must be under Chapters VIII and VIII A of the Code, must be held to be within the meaning of and complying with Section 19 of the Act
24. From the affidavit in reply of the Under Secretary to the Revenue Department, it is clear that the operations provided in Rule 17 were in fact gone through before the revised rates for these two villages were fixed by the Collector under Section 52. The affidavit states that in 1951 1952, the average rates of assessment for Khalsa and non-khalsa villages were fixed and also states how they were fixed. After the reorganisation of States from November 1, 1955 it was found that the assessment rates fixed in khalsa villages in Saurashtra area were much higher than in the comparable union areas of the Bombay State, and with a view to bring about uniformity Rule 17 was introduced in the land Revenue Rules as from 20-5-1959. At that time, the amendment rules were published in the Gazette and objections from the public were invited and thereafter the same were brought into effect and implemented. The affidavit also states that a special officer for each district was appointed to implement Rules 17 and 18 and village-wise local committees were formed for classification of lands into good, medium and inferior varieties. Likewise, comparable and union areas of lands in the Bombay State with respect to ex-Saurashtra lands were fixed, and on the basis of that, village-wise and field-wise assessments were made which were approved by the Director of Land Records and Settlement Commissioner. These rules were then implemented by the Collector of the districts concerned under Section 52 of the Code Under a notification issued in 1960 a study of different areas in the different districts of Saurashtra region was made and certain areas were declared as comparable with the regularly and scientifically fixed areas of the ex-Bombay State and then standard rates of such settled areas were extended to the aforesaid areas of the Saurashtra districis. including the barkhali estates, and thus assessment so fixed on each individual parcel of land under Rule 17 was based on the standard rates worked out by settlement made under the provisions of Chapter VIII-A of the Code. Until then, the average rates of assessment fixed during the time when the State of Saurashtra existed were not the settlement rates and therefore, the Collectors of the various districts,under powers conferred on them under Section 52 of the Code, fixed and/or revised the assessment in the respective villages including barkhali and girasdari villages by applying the settlement rates of comparable union areas settled under the provisions of Chaper VIII-A of the Code, replacing thereby the average rates fixed in 1951-1952 by the Mamlatdar which appeared to he manifestly unfair.
25. There can, therefore, he no doubt that the revised assessment made by the Collector in the instant cases was done in accordance with the provisions of Section 52 and Rule 17 and assessments were made as a result of survey and settlement. As already stated, there is nothing in Section 19 to show that survey and settlement there contemplated are only survey and settlement under Chapters VIII and VIII-A of the Code If there has been valid survey and settlement under provisions other than those two chapters of the Code, that would be still survey and settlement within the meaning of Section 19. The assessment made by the Mamlatdar under Section 19 has to give way to an assessment made under the Code, for, it is under the Code that an occupant is liable to pay land revenue as prescribed by Section 16. The assessment made, therefore, under Section 52 has to he substituted for the one made under Section 19 by the Mamlatdar and the annuity payable under Section 18 being equal to one assessment, it has to change if the assessment made under Section 52 on survey and settlement varies from that fixed by the Mamlatdai in our view, there is no validity in the contention that the assessment made under Section 52 is not an assessment on survey and settlement. Equally, there is no validity in the contention that once an assessment is made by the Mamlatdar. the annuity gets fixed or crystallized on the basis of such assessment and is not liable to change even though in Section 19 the Legislature has in terms' stated that the assessment fixed by the Mamlatdar is to subsist only till survey and settlement are made and the assessment is freshly fixed
26. Two further contentions urged by Mr. Nanavati may now be considered The first was that the right of a barkhalidar to receive cash annuity is a right to property guaranteed by Article 19 and since that right was adversely affected by reducing the rates of assessment by the Collector's executive act without affording an opportunity [o the petitioners to be heard, the revised assessment was in violation of Article 19 and therefore invalid. According to Mr. Nanavati, Rule 17 also is bad as it violates Article 19 in that by providing for a revised assessment the rule indirectly affects the right to property guaranteed by that Article in our view the answer to this contention is that the operations carried on by the Collector under Section 52 of the Code and Rule 17 of the Land Revenue Rules were operations for the purposes of revising assessment for which Section 52 has given the power It cannot be gainsaid that the Collector's order filing the revised rates was with jurisdiction. Since the revised rates reduced the rates ofassessment fixed by the Mamlatdar which were higher than those prevailing in the rest of theState of Bombay for the same class of lands, they did not prejudicially affect the persons liable to pay assessment. Prima facie, if at all any one was entitled to a hearing, it would be the person who was liable to pay assessment who could complain that no opportunity of being heard was furnished to him. It is, however, true that the revision of rates has affected the quantum of annuity payable to the petitioners. But if we are right in our conclusion on the first part of the argument and on the construction we have placed on Sections 18 and 19 of the Act, the right to receive annuity is a right given by the statute, and if that statute itself provides that the annuity shall be equal to one assessment, whatever that assessment is when it becomes annually payable that statutory right cannot be said to have been reduced or adversely affected. The contention is again based upon the same assumption that the quantum of annuity gels crystallized once the Mamlatdar has fixed assessment under Section 19. But that assumption, though it may be said to have been warranted in respect of compensation payable under the Land Reforms Act, is not warranted under the present Act. When, therefore, as a result of the fixation of assessment by the Collector under Section 52 of the Code the amount of annuity gels correspondingly reduced, there is no infringement of Section 18 or 19 of the Act, for, in the view we lake of those sections, that is precisely and the only right which the Act confers on the petitioners.
Besides, no right of hearing to barkhalidars is given either under the Barkhali Abolition Act or under Section 52 of the Code Since the validity of these provisions has not been challenged in these petitions and the fixation of assessment has been made in compliance with the provisions of Section 19 of the Act and Section 52 of the Code, this contention cannot be accepted. Reliance was placed, however, by Mr. Nanavati on the decision in Jayvantsinghji v. State of Gujarat. AIR 1962 SC 821 That decision, in our view, has no applicability to the instant cases, for, what that decision held was that (1) the time limit prescribed in Section 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958, was bad and (2) that Sections 3, 4 and 6 of that Act were colourable pieces of legislation which, under the guise of changing the definition of a permanent tenant, deprived the ex-Talukdar of compensation which was payable under the Bombay Tenancy and Agricultural Lands Act, 1948. This decision also cannot apply because in that case the right to receive compensation at least at twenty times the assessment accrued to the ex-Talukdar under the Bombay Tenancy Act, 1948 and it was that right which was infringed by an attempt to give a new definition of the expression, a permanent tenant. That is not the case in these petitions. On the construction placed by us on Sections 18 and 19 of the Act the annuity is liable to vary according as the assessment varies, for, the only right that these sections confer on the barkhalidar is to receiveannuity equal to one assessment and, as already stated, Section 19 itself contemplates that the assessment by the Mamlatdar thereunder is to subsist only till the village in which the lands are situated is surveyed and settled. If the assessment is changed as a result of survey and settlement, the annuity, having to be equal to that assessment, is liable to be changed. Therefore, no question of any infringement of Section 18 of the Act arises. Equally, there cannot be any question of a breach of right to property, for the only right conferred by the statute is to receive annuity equal to one assessment contemplated by Section 19.
27. The second contention was founded on Article 31 and, as submitted by Mr. Nanavati, the argument was that when Section 19 uses the expression 'surveyed and settled', it refers to an event which is to occur under the Land Revenue Code and not a power under that section. He argued that when the President's assent was taken, the only law for survey and settlement was that contained in Chapters VIII and VIII-A of the Code, for, Section 52 of that Code did not contain a provision for survey and settlement and Rule 17 was not vel inserted in the Land Revenue Rules, 1921 Therefore, the President's assent must be held to be on fined to the provisions as to survey and settlement contained in those two chapters only and to the assessment on the basis of arithmetic average contained in Section 19 of the Act. Therefore, if Rule 17 were to be resorted to that could only be done by a first legislation and such legislation must have a fresh assent of the President. In urging this contention, however, what is forgotten is that Section 52 of the Code giving power to the Collector to fix assessment was in existence when the President gave his assent to the Barkhali Abolition Act. That section also contains the provision that the Collector can fix assessment in respect of lands not surveyed and/or settled under Chapters VIII and VIII-A of the Code and that he can exercise that power subject to the rules made under Section 214 of the Code. Section 214(l)(b) of the Code expressly confers power on the Government to frame rules for regulating assessment, alteration and revision of such assessment the president was, therefore, aware that the State Government in future might frame rules for regulating and/or for revision of assessment and must, therefore, be presumed to have given his assent, being aware that rules such as Rule, 17. would be made in future. When be gave his assent to the Barkhali Abolition Act, he was aware of the provisions of Section 19 which in express terms contemplate assessment under the Code in future and that such assessment would include assessment under Section 52. Since the power under Section 52 is subject to the rules and that power is, under Section 214, to frame rules regulating assessments, the assent was sufficient to cover the assessment, which may be made in accordance with and subject to Rule 17
28. These were all the contentions urged before us. In the view we fake of Sections 18 and 19 of the Barkhaji Abolition Act, Section 52 of the Code and Rule 17 of the Land Revenue Rules,It is not possible to sustain them. The contentions urged on behalf of the petitioners, therefore, must fail.
29. Special Civil Applications Nos. 588 of 1963 and 168 of 1964 are the two petitions which raise an additional question, namely, that as the villages in which the lands in question in those petitions were uusurveyed at the time when life Mamlatdar under Section 19 fixed the rates of the assessment, the area of the lands in possession of the tenants of the petitioners in those two petitions was wrongly set out by the Mamlatdar in the occupancy certificates issued by him to the petitioners' tenants and, as a result of that mistake, cash annuity payable to the petitioners was also incorrectly calculated. The contention raised in these two petitions therefore, is that the Mamlatdar should be directed to rectify the mistake committed by him in the cash annuity payment certificates issued in favour of the petitioners. After some arguments on this question. Mr. D.D. Vyas. who appears for the petitioners in both the petitions, stated before us that he would not press this additional question in these petitions and that instead he would make an application to the State Government requesting the State Government to direct the Mamlatdar to rectify the mistake. Thereupon, the learned Assistant Government Pleader, stated before us that if such an application were to be made by the Petitioners, the Government was prepared to consider such an application. In view of the fact that Mr D.D. Vyas has not pressed this additional question, it does not become necessary for us in consider it and, therefore these two special civil applications also fall in line with the rest of the applications in the present group. Since we are not in a position to sustain any of the contentions urged on behalf of the petitioners in this group of petitions, all the petitions will have to he dismissed. Accordingly the rules in these petitions are discharged. The petitioner or the petitioners in each of these petitions will pay to the respondents the costs of each respective petition.
30. Mr. Nanavati and the other learnedadvocates appearing for the petitioners applyfor a certificate for leave to appeal to theSupreme Court. Since these petitions, involvean important question of interpretation ofSections 18 and 19 of the Barkhali Abolition Act,1951 and also involve other questions of law,we allow the application and issue a certificateunder Article 133(l)(c) to each of the petitioners in this group of petitions.