A.R. Bakshl, J.
1. These are 12 petitions under Article 227 of the Constitution directed against the decision of the Revenue Tribunal deciding the claims of the petitioners made by them under the provisions of the Bombay Taluqdari Tenure Abolition Act, 1949. The Revenue Tribunal has by a common judgment disposed of all the appeals filed by the petitioners against the awards made by the Special Deputy Collector, Ahmedabad. and has dealt with the points of general nature common to those appeals, and dealt with each appeal separately in the same judgment. The learned advocates appearing before us in these petitions have argued these matters on the same lines, and, therefore, we propose to dispose of the present petitions by a common judgment.
2. The petitioners are the ex-Talukdars of certain villages in the district of Ahmedabad, and their tenures were abolished by the Bombay Taluqdari Tenure Abolition Act, 1949. Section 3 of the said Act provides that the Taluqdari tenure shall wherever it prevails be deemed to have been abolished and save as expressly provided by or under the provisions of the Act, all incidents of the said tenure attaching to any land comprised in a Taluqdari estate shall be deemed to have been extinguished. Section 5 of that Act provides for the liability of Taluqdari land to payment of land revenue, and by virtue of Section 6, all public roads, etc. are to vast in the Government, and all rights held by a Taluqdar in such property as mentioned in Section 6 shall be deemed to have been extinguished. Section 7 of the Act provides for compensation to Taluqdars for extinguishment of rights under Section 6, and Section 14 provides for the method of compensation for the extinguishment or modification of any other rights not provided for by Section 7. Both Sections 7 and 14 provide for application to be made to the Collector for payment of compensation in respect of the extinguishment of the rights as provided in those sections, and the Collector is required to pass an award deciding the claims made by the Taluqdars as aforesaid. The present petitioners filed claims before the Special Dist. Collector who has passed awards in each case against which the petitioners filed appeals before the Revenue Tribunal, which, as we have already stated, decided these appeals by a common judgment. It is in respect of this decision of the Revenue Tribunal that the petitioners have preferred the present petitions under Article 227 of the Constitution of India.
3. In order to appreciate the contentions of the petitioners it will be necessary to stale the essentia) characteristics of the Taluqdari Tenure and to briefly recapitulate the historical back-ground of the Bombay Taluqdari Tenure Abolition Act 1949 The taluqdari tenure was one of the several varieties of the old Taluqdari tenures existing in Gujarat and has passed through many vicissitudes both in respect of the rights and incidents attached to it and concessions made from time to time by Government. In Chapter V of Agrarian Reforms in Bombay by G.D. Patel certain pertinent remarks of Mr. Reeves have been quoted:
4. There is no doubt that they are sprung from an ancient race of hereditary proprietors who were found by the Moguls at their first appearance in Gujarat possessed of considerable power and wealth. The Moguls managed to expel the whole of them from their estates but on a stubborn resistance being made they felt themselves obliged to restore to the Garasias in the immediate vicinity of the capital Ahmedabad a portion of their lands which is held to this day rent-free as Wanta while to those situated more remote from the capital and whose resistance was still more resolute restoration of their lands was made in full burdened however with the obligation of paying tribute. This tribute which was annual amounted to about half the net revenue of each estates and was payable in cash. It now here appears that the estates were burdened in any other manner. And thus the Garasias were settled by the Moguls as actual proprietors of their estates with the simple liability of paying tribute to the Government.
5. According to Mr. Reeves after the acquisition of Gujarat from the Marathas the British Government continued to realise annual payments according to past years. But very soon the nature of the payment was altered and Government assumed it to be rent or revenue instead of a tribute. This rental was increased by 50% with the result that the Taluqdars were driven to indebtedness. With a view to ameliorate and relieve them from such financial embarrassment the Bombay Act VI of 1862 was passed which provided for the settlement of financial liabilities of the Taluqdars and the reinvestment of the proprietary rights. But it may be noted that this Act placed no limitation on the amount of tribute leviable from the Taluqdars. Before 1888 the taluqdari tenures were not specially recognized in the legislation relating to landed interests and there was no land-law applicable to those estates. The Gujarat Taluqdars Act 1888 was passed to provide for the revenue administration of the estates of the Gujarat Taluqdar and to limit the further operation of Bombay Act VI of 1862. It appears that until 1862 the taluqdars were legally regarded as merely lease-holders; from 1862 till 1888 they were regarded as full proprietors with unlimited powers of alienation and from 1888 onwards while still remaining full proprietors some restrictions were placed on the power to alienate their estates. Their estate was however always subject to payment of tribute to Government and no limit was imposed on the amount of tribute levied from them. Section 22 of the Gujarat Taluqdars Act 1888 provided for payment of Jama in respect of a taluqdars estate. This section provides that Jama payable in respect of a taluqdars estate shall be the aggregate of the survey-assessments of the lands composing such estate or portion thereof and Section 23 saves any agreement about the settlement of Jama entered into by a taluqdar or any settlement of the amount of Jama under the orders of Government. Thus the tribute of 1815 became the survey assessment of 1888 and the State demand has passed through successive changes of character almost invariably increasing in amount. Beginning as a tribute proper it became first a roughly calculated tax on the rental and finally in 1888 land revenue payable as an aggregate of the survey assessments of the lands comprising an estate. This levy was thus liable to revision from time to time.
It will now be convenient to quote Sections 22 and 23 of the Gujarat Taluqdars Act 1888 They are as under:
22 If a taluqdars estate or any portion thereof is not wholly or partially exempt from land-revenue and its liability to payment of land revenue is not subject to special conditions or restrictions the jama payable to (the Provincial Government) in respect of such estate or portion thereof shall if a survey settlement has been extended thereto be the aggregate of the survey-assessments of the lands composing such estate or such portion thereof minus such deduction if any as (the Provincial Government) shall in each case direct.
(2) The (Provincial Government) may declare the amount of jama so ascertained fixed for any term not exceeding thirty years.
Section 23(1): Nothing in this Act shall be deemed to effect the validity of any agreement heretofore entered into by or with a taluqdar and still in force as to the amount of his jama nor of any settlement of the amount of jama made by or under the orders of (the Provincial Government) for a term of years and still in force.
(2) Every such agreement and settlement shall have effect as if this Act had not been passed.
The Bombay Taluqdari Tenure Abolition Act 1949 came into operation on 24th Jan. 1950 and one of its objects was the abolition of the taluqdari tenure. We may here refer to some of the sections of the Act which are relevant for the consideration of the questions involved in these petitions. Section 3 of the Act is as under:
With effect from the date on which this Act comes into force
(i) the taluqdari tenure shall wherever it prevails be deemed to have been abolished; and
(ii) save as expressly provided by or under the provisions of this Act all the incidents of the said tenure attaching to any land comprised in a taluqdari estate shall be deemed to have been extinguished.
Section 5 provides for the liability of taluqdari land to payment of land revenue in the following terms:
5(1) Subject to the provisions of Sub-section (2)
(a) all taluqdari lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder and
(b) a taluqdar holding any taluqdari land or a cadet of a taluqdars family holding any taluqdari land hereditarily for the purpose of the maintenance immediately before the coming into force of this Act shall be deemed to be an occupant within the meaning of the Code or any other law for the time being in force.
6. It will be noticed that all taluqdari lands have been made liable by Section 5 of the Bombay Taluqdari Tenure Abolition Act to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code and the taluqdar is made an occupant of his holding and liable to pay full assessment to the State. The petitioners therefore contend hat the taluqdar was liable to pay jama only to the State Government and the maximum amount of Jama could be 60% of the total assessment of the village and that as they are required to pay the full assessment to be State now under Section 5 of the Bombay Taluqdari Tenure Abolition Act he suffers a loss of 40% of the land revenue of the village which according to the petitioner is a valuable right extinguished by the Act and therefore compensation is payable to the Taluqdar under the provisions of the Act. On this basis the petitioners have claimed compensation for the extinguishment of their rights to pay jama as aforesaid. The petitioners have further contended that they have the right to pay jama and that the concession enjoyed by them was a matter of their right and not merely a voluntary concession. The petitioners in support of their claim have relied upon a public notice or Jahirnama in which an assurance was given to the Taluqdars that the jama payable by them would in no event be increased to more than 60 percent of the assessment. The petitioners further say that this assurance contained in the Jahirnama created a legal and enforceable right in them which was extinguished by the Bombay Taluqdari Abolition Act and therefore compensation was payable to them under the provisions of the Act.
7. Referring to Section 22 of the Gujarat Taluqdars Act 1888 the petitioners say that the instructions contained in the Jahirnama amount to a direction within the meaning of Section 22(1) of the Gujarat Taluqdars Act and therefore creates a right in the Taluqdars which is binding on the Government.
8. It may be observed that one of the villages in relation to which claims for compensation were filed by the petitioners were held by them on payment or Uddhad or fixed jama but the jama fixed in respect thereof was liable to alteration at each revenue settlement. These villages cannot also be said to have been held under any special contract or grant for the entire or partial exemption of payment of land revenue. Section 5(2)-A of the Taluqdari Abolition Act was not applicable to these villages. The jama payable in respect of these villages was liable to revision as we have already noticed under the revision settlement. The holders of the villages had a right to pay the jama fixed at the last settlement during the period of the settlement but after the expiry of the period such a right came to an end. It is therefore clear that whatever right or concession the petitioners enjoyed to pay a reduced jama could be enforceable during the period of the settlement but they would have no such right after the expiry of the period of settlement. The public notice or the Jahirnama on which the petitioners rely is merely in the nature of an assurance by the executive government and has not been given any statutory effect nor has it been issued under the provisions of the Gujarat Taluqdars Act 1888
9. The learned advocates of the petitioners have referred us to para 17 of the letter from the Taluqdari Settlement Officer dated 19th February 1914 wherein it has been stated:
If Government are anxious to make a concession which would give the greatest possible pleasure of the taluqdars of Ahmedabad they could find no better means of doing so than to confer the privilege of a jama permanently fixed. No immediate loss of revenue need result. It would be sufficient to provide in the Bill that the jama of all estates should be revised within (say) the next ten years and that the figure settled should be fixed in perpetuity. On the second request for the definition of jama as Tribute I have little remark to make. Jama was defined in the Act 1888 as 'Land Revenue and in the Act of 1862 as Land Tax while previously to the passing of that Act it was treated in the Ahmedabad District as rent payable by a lessee. Under the Moghul and Maratha Governments it probably was a species of tribute but it has never been treated as such in British times. If Government granted the request it could he but as a pure concession to sentiment and such a concession if made would necessitate considerable amendments of the Bill in order to protect the interest of Government in the matter of the collection of jama.
We have also been referred to an extract of the paras 6 and 7 from the letter of the Commissioner dated 13th April 1914. Para 6 of that letter states that-
6 The question of fixity of the jama in the Ahmedabad District is not really relevant to the present issue and I should not touch upon it here but for the promise I gave to the taluqdars that it should again be brought to the notice of Government This is a matter which is I believe of far more absorbing interest to the taluqdars than any of the changes to be made by the Bill. It is one which has frequently been considered by Government but although they have hitherto refused to bind themselves by any declaration that the jama shall never exceed a declared percentage of the survey assessment it does not follow that the last word of the subject has been said. Government have repeatedly made it clear that while unwilling to bind themselves in perpetuity they do not intend to demand more than a reasonable percentage. That the percentage now levied will be largely increased for many years to come is I take it extremely improbable. I should hesitate to recommend a perpetual settlement. I venture however to suggest that there would be small risk of injury to the interests of the State were the jama revised as Mr. Jukes has advised in his paragraph 17 and a guarantee given that for a period of thirty years there shall be no increase of the amount settled in revision-it would be sufficient to replace the may in Sub-clause (2) of Clause 13 of the Bill by shall. Such a concession would go far I think towards removing a grievance that many taluqdars believed themselves to have and it would involve but small of any appreciable loss of Government revenue.
Paragraph 7 of the letter is as follows:
A demand has been made for the definition of jama as tribute Tile grievance is admittedly a sentimental one and I am not prepared to urge Government to recede from the position which they have so long maintained.
Reference has also been made to a memorandum by the Government of Bombay dated 2nd October 1914 which is as under:
Memorandum: The undersigned presents compliment to the Commissioner Northern Division and with reference to paragraphs 6 and 7 of the Honourable Mr. Barrows letter No. Confl. 22 dated 13th April 1914 to the address of the Secretary to Government Legal Department is directed to communicate the accompanying memorandum for his information and for communication to all whom it concerns.
The Governor in Council has had under consideration as the request made by a number of taluqdars and reported to Government by the Commissioner Northern Division and the Taluqdari Settlement Officer that the jama on their estates should be permanently fixed. While unable to accede to this request the Governor in Council is willing that specific provision should be made for the revision of jamas and the levy of existing jamas while the revision is being made for limiting the jama to such portion not exceeding three-fifths or 60 percent of the aggregate of the survey assessment of the lands comprised in a taluqdars estate as Government may from time to time direct and for fixing the jama as ascertained for a period of not less then thirty years. The requisite amendments in the Gujarat Taluqdars Bill now before the Legislature Council will accordingly be prepared for the consideration of the Council. Having carefully considered the words of the Jahirnama from the letters and the memorandum referred to above we are unable to accede to the argument of the petitioners that this in any way constitutes or creates a legal right in the petitioners to pay fixed amount of Jama which was not liable to revision It is true that the Taluqdars had placed a strong request before Government to fix the jama permanently and that an assurance was given to them in the letters and the Jahirnama referred to above but that was merely as matter of grace and not by way of any right. This assurance was not given under any of the provisions of the Gujarat Taluqdars Act 1888 which was then applicable to taluqdari estates and we are unable to read anything more than a recommendation to Government in the letter of Mr. Jukes or in the letter of the Commissioner dated 13th April 1914. The recommendations and the assurance contained in the aforesaid documents have not been followed up by any Act or resolution from the Government. We are therefore unable to accept the argument advanced by the learned Advocates of the petitioners that the aforesaid letters and the Jahirnama created a legal and enforceable right in the taluqdars and that they constitute a direction by Government within the meaning of Section 22 of the Gujarat Taluqdars Act.
10. It is also contended on behalf of the petitioners that the taluqdars were retaining the 40 percent of the assessment out of the full assessment payable in respect of the lands and therefore there is transference of this right to Government and compensation is therefore admissible to them. As we have already stated the Taluqdari estate was always liable to payment of land revenue to Government subject to revision from time to time and any concession made to them was merely a voluntary one on the part of Government and which did not create any right in the petitioners. We are unable to see how the extinguishment of such a right amounts to transference of any right in or over such land within the meaning of Section 14 of the Act whereby the Government would be liable to pay compensation under the provisions of the Act. We are therefore in agreement with the views expressed by the Revenue Tribunal in respect of the claims of the petitioners regarding this item and we see no reason to interfere with the findings of the Revenue Tribunal.
11. The next claim of the petitioners relates to roads lanes and village paths. This claim comprises of compensation in relation to the extinguishment of the petitioners right of ownership over sim or boundary roads and internal roads paths and Gallis. In respect of this claim the Special Deputy Collector held that these roads paths and Gallis were used by public and it was contended before the Tribunal that the taluqdars being the full proprietors of the villages had the right of ownership over these roads and that the public were allowed to use them as licensees only. The Tribunal was of the view that no evidence was adduced to show that by customary usage or in exercise of the preparatory rights the taluqdars ever prevented the members of the public from using the roads or diverted them in any other direction of their choice. The Tribunal further held that no evidence was adduced on behalf of the petitioners that they had reserved for themselves any rights over the Sim or internal roads and that the dedication of the roads to the public was irrevocable. On this reasoning the Tribunal proceeded to conclude that the Sim roads as well as the interna] paths in the villages which were used by the public have been proved to have been dedicated to the public and that therefore the petitioners were not entitled to claim any compensation either under Section 7 or Section 14 of the Taluqdari Abolition Act
12. The learned advocates of the petitioners have pressed the claim of the petitioners on the same basis and have contended that there was no dedication in fact of the lands utilised by the residents of the village as an approach to the residential houses. It contended that although the inhabitants of the village were in fact using the roads and paths such user was only by way of licence with the implicit permission of the taluqdars and therefore a dedication to the public cannot be spelt out from such a user. Both the authorities below have come to the conclusion that these roads and paths were used by the public and that no evidence of reservation has been led by the petitioners. Public rights of way are either created by a statute or arise out of dedication by the owner of the soil for public use and no particular form of dedication is necessary for the creation of such a right in the public. The use for a considerable time as a public street or path may in given circumstances create a presumption of dedication which can be inferred from a clear intention on the part of the owner allowing the public to use a particular part of his soil after earmarking a portion thereof for the use of the public for all time and without any reservation or change in the mode of enjoyment. Not a single act of interruption by the owner has been proved by the petitioners and no circumstances have been shown which are incompatible with the dedication which are sufficient to rebut the presumption drawn by the Tribunal. In the circumstances if the Tribunal came to the conclusion of dedication of the roads and paths to the public we see no reason to interfere with that conclusion. We may mention here that a reference was made in the argument of the learned advocates of the petitioners that compensation would be admissible to them for Chowks which are small pieces of land on which two or more than two roads meet. Now these pieces of lands are really speaking part of the public road or pieces allotted for public use and not reserved for private use and therefore the same principle of dedication referred to above will apply to the claim for compensation in respect of these Chowks.
13. The next claim of the petitioners relates to rivers and river-beds. The Tribunal has observed in this connection that flowing water in natural streams is public juris and cannot be of private ownership and that the water course is subject to the rights of riparian owners and cannot be appropriated by the Taluqdars or sold to the prejudice of their rights. The Tribunal however observed that subject to the rights of riparian owners Government has also a right to regulate the collection retention and distribution of the water and that therefore a river or a part of a river could not be sold by a Taluqdar and therefore it could not have any market value within the meaning of Section 14 of the Taluqdari Abolition Act read with Section 23 of the Land Acquisition Act. The Tribunal however was of the view that in a village which was held on taluqdari tenure a taluqdar would be entitled to the abandoned beds of a river or a stream even if the taluqdari tenure was abolished and that it was not open to the petitioners to claim any compensation on account of the stream or river beds which vested in Government under Section 6. We are unable to agree with the reasoning of the Revenue Tribunal.
14. The learned Advocate General has contended that neither Section 7 or Section 14 of the Taluqdari Tenure Abolition Act would be applicable to this claim and therefore the petitioners were not entitled to claim any compensation. It seems to us that the Tribunal was in error in coming to a conclusion that it was only the adjacent riparian owner who was interested in the river and the river beds and not the taluqdars. It cannot be denied that the taluqdars were the proprietors of all the village lands and had not dedicated the river beds to the public. Logically therefore on the extinguishment of the rights in and over the river and rive beds they would be entitled to compensation for the extinguishment of their rights under Section 14 of the Taluqdari Tenure Abolition Act. The Tribunal in the view it took has not considered the method by which the amount of compensation in respect of this claim of the petitioners should be calculated and there has been no inquiry about the details of this claim. It would therefore be necessary to remand the case for investigation into the details of the claim to the Deputy Collector who will pass an award after investigation into the claim of the petitioners and fix the amount of compensation payable to the petitioners. It will be open to the petitioners to suggest the method of calculation of the amount payable to them by way of compensation and the Deputy Collector will after consideration of the evidence if any given by both the sides pass an award fixing the amount of compensation payable to the petitioners in respect of this claim. It has been argued by the learned advocates of the petitioners that the Tribunal was wrong in calculating the compensation for bunds on the ground that the petitioners were being compensated on the income value that is on Himayat and water rate basis and therefore the petitioners were not entitled to any additional compensation on the basis of their structures.
15. It has been argued before us that the basis of the compensation for the bunds should be on the cost of construction minus depreciation and that they should be considered as structures. In other words it is suggested that the method called the reinstatement method should have been employed in the assessment of compensation in respect of bunds. It is contended that the bund is a structure wherein earth must have been utilised for its construction and it would be impossible to arrive at any definite finding on the basis of its original cost value and therefore the reinstatement method is the most convenient one. The learned Advocate General has on the other hand contended that the market value or the cost of reinstatement method cannot be employed in the present case as there can be no question of reinstatements because the entire estate is acquired and that the Himayat basis employed by the authorities below is the only method nearest to the correct method and therefore we should not interfere with the decision arrived at by them. The petitioners on the other hand contend that the Himayat has no relation with the profits that would accrue to the petitioners by the utilisation of the bunds but has relation only with the method of assessment and that therefore the Himayat method cannot justifiably be utilised for the purpose of calculating compensation payable to the petitioners. The Tribunal while discussing this claim has observed that in considering the claim for compensation in respect of bunds it would be necessary to deal with the question of compensation on the basis of Himayat and water rates of assessment The Tribunal has further observed that this would be used for the purpose of supplying water for irrigation purpose or for the supply of water for drinking for villagers and for their cattle. When it was used for irrigation purposes it appears that Taluqdars have charged Himayat for cultivators The Tribunal therefore was of the view that the petitioners were adequately compensated when they were allowed 25 times the Himayat assessment. We have been shown by the learned advocates of the petitioners the Jamabandi Patrak prepared under Section 108 of the Land Revenue Code and we are satisfied that the Himayat is more akin to a method of assessment than to a sort of yield indicating the profits derivable from the use of the bunds or the irrigational wells and we are of the view that the Himayat method is not the correct method which could be employed for the purpose of assessing the compensation payable to the petitioners. We are satisfied that the suggestion made by the petitioners that the cost of construction or the reinstatement method is not the proper method for the assessment of compensation.
16. Now it is true that there are certain types of property as for example schools hotels churches etc. which are specially dependent on their particular situation and peculiarity adopted to a particular use to meet a specified need and in the like cases the income derived or derivable would not constitute a fair basis in assessing their market value since such types of properties possess some special characteristics and therefore the normal method of valuation would not be a fair guide to the determination of compensation and the only reasonable basis to adopt in such a case would be the estimated cost which the owner will incur in acquiring a suitable site and in constructing a suitable building similar to the one which had been acquired. In cases where a land is used for a particular purpose it is indeed very difficult to estimate the loss that would be caused on account of acquirement and one method that may profitably be adopted in such cases would be to assess the amount of compensation according to the cost of acquiring an equally convenient site and erecting an equally convenient premises to meet that particular need. This method is known as the reinstatement method. In our opinion it must depend on the facts of each case whether in a particular case the principles of reinstatement would be applicable and the material consideration to attract the principle of reinstatement would first be the nature of the property which is to be displaced and the intention of reinstatement. An important consideration for the application of this principle is that reinstatement in some other place must bona fide be intended. In the cases before us there is no question of any displacement nor is the construction of similar property intended. In our view therefore this principle will clearly be inapplicable to the facts of the present cases.
The next question would therefore be what would be the proper method for assessing the amount of compensation. We have already come to the conclusion that the Himayat method adopted by the Tribunal is not the proper method nor is the cost of construction or the reinstatement method. In our opinion the proper method would be the yield method that is to say to calculate the loss of yield or profit on account of cession of the use of the water available from the bunds irrigational tanks and wells per year and then to multiply it by 25 times. It may be taken that the utility of the properties for the purpose of irrigation would normally endure for 25 years on an estimated basis for the purpose of calculation and therefore the yield per year multiplied by 25 times would in our opinion be a reasonable compensation payable to the petitioners for the irrigational wells tanks and bunds. For the aforesaid reasons we are not in agreement with the reasoning of the Revenue Tribunal and while varying its decision on this portion of the claim we direct that the Special Deputy Collector should investigate the claim in the light of our decision allow both the parties to lead whatever evidence they desire to give on the question of yield per year and assess the amount of the compensation on that basis. As regards non-irrigational wells and tanks we have already stated that we accept the method adopted by the Tribunal which is the correct one and we see no reason to differ from its decision on that point.
17. The next important contention of the petitioners is that they should be warded 15 per cent solatium on the market value in consideration of the compulsory nature of acquisition. It was contended that the Taluqdari Tenure Abolition Act provides for compulsory acquisition and the explanation to Section 7 states that the provisions of Sections 23 and 24 of the Land Acquisition Act would apply as far as such provisions are applicable. The learned Advocate General contended that the explanation to Section 7 provides that the expression market value used in Sub-section (3) of that section means the market value as estimated in accordance with the provisions of Sections 23 and 24 of the Land Acquisition Act 1894 and that the solatium of 15 per cent provided by Section 23(2) of the Land Acquisition Act is not a part of the market value but is in addition to the market value and therefore neither Section 7 or Section 14 entitles the petitioners to claim 15 per cent solatium over the compensation awarded on the basis of market value and that therefore the claim for 15 per cent must fail. The Tribunal has negatived this claim of 15 per cent solatium on the market value on a similar reasoning. In the explanation to Section 7 referred to above it has been stated that market value shall mean the market value as estimated in accordance with the provisions of Sections 23 and 24 of the Land Acquisition Act and in Section 14 of the Taluqdari Tenure Abolition Act it has been mentioned that in determining the amount of compensation the Collector shall be guided by the provisions of Sub-section (1) of Sections 23 and 24 of the Land Acquisition Act.
18. Before we turn to examine the language of the Explanation to Section 7 we should like to make some prefatory observations about the principles of construction having beating on the mailer. It is well established that when any phrase or word or expression in an enactment is explained by the Legislature the provisions of the Act are to be applied with the authoritative explanation: for the very object of the authoritative explanation is to enable the Court to understand the provisions in the light of the explanation. The construction of the explanation as Lord Finally pointed out in Krishna Ayyangar v. Nulla Perianal Pillai I.L.R. 43 Madras 550 (P.C.) must depend upon its terms and no theory of its purpose can be entertained unless it is to he inferred from the language used. The explanation it is also well-established must be construed only according to the words used and not with any equity or intendment for there cannot be an explanation upon an explanation. The explanation to Section 7(1)(iii) asks us to bear in mind that the meaning of the expression market value must as far as Sections 23 and 24 can be rendered applicable be in accordance with the provisions of those sections that is to say the meaning must as far as possible be in conformity with the provisions of those sections. In applying that meaning we must take the relevant words in their plain ordinary sense without in any manner adding to or limiting their field of coverage and operation.
19. Reference to Sections 23 and 24 of the Land Acquisition Act is to be found also in Section 14(2) of the Act and in Section 14(2) the Legislature deliberately confines the reference to the provisions of Sub-section (1) and Section 24 of the Land Acquisition Act. The language of the two provisions that in Section 7(1)(iii) read with the Explanation to Section 7 and that in Section 14(2) requires to be studied and the variation in the language should be construed as indicating change of intention in a case falling under Section 14 If that be accepted the Explanation to Section 7 must be given its full meaning and effect and not restricted in the manner suggested by the Advocate General. Moreover the provisions with which we are concerned require to be liberally construed. By this we do not mean that they should be given any strained or unnatural meaning. Nor do we intend to be understood to suggest that there should be any unwarranted extension of their ambit and operation. What we mean is that a reasonable doubt as to the meaning of it would be resolved in favour of the person whose property is expropriated and is claiming compensation in respect of the same. Any matter reasonably within the coverage of the explanation to Section 7 must be included as within the scope of the section unless there is anything in the section which necessarily points to a basis for strict and limited interpretation being given to it.
20. In our view therefore the reference in the explanation to the provisions of Sections 23 and 24 of the Land Acquisition Act must include the entire provisions of Section 23 including the Sub-clause (2) of Section 23 providing for a payment of additional solatium of 15% and the market value must also include the 15 per cent which is usually termed as solatium. For the reasons stated we are not in agreement with the Tribunal in rejecting the claim for awarding 15 percent amount of solatium to the petitioners as claimed by them. We therefore direct that the amount of 15 per cent shall be added to the amount that has been awarded as market value under the provisions of Section 7(1)(iii) and further direct the Special Deputy Collector to include this amount in his award.
21. His Lordship after discussing the merits of claims of each petitioner separately further observed:
This disposes of the points presented before us in respect of each individual village. We may now summarise our decisions on the points of general nature raised before us and common to all the petitions. The decision on these claims will govern all the twelve petitions in so far as it is applicable to each of them.
(1) The decision of the Tribunal regarding the claim for compensation for Jama will stand and the petitioners are not entitled to any compensation for lama.
(2) The decision of the Tribunal regarding the claim for compensation for roads gullies streets paths chowks will stand and the petitioners are not entitled to compensation for the same.
(3) The decision of the Tribunal regarding claim for compensation for rivers river-beds is set aside. The claims are remanded to the Special Deputy Collector for investigation into these claims and for fixing and awarding the amount of compensation after taking evidence of both the parties. This decision also will apply to Kans and Vehlas wherever applicable.
(4) The decision of the Tribunal regarding non-irrigational wells and tanks will stand and the matters are remanded to the Special Deputy Collector for determination and award of compensation as directed by the Tribunal.
(5) The decision of the Tribunal as regards irrigational wells, tanks and bunds is set aside and the claims are remanded to the Special Deputy Collector for investigation fixation and award of compensation on the yield basis after taking evidence of both parties.
(6) Tribunals decision regarding the claims for unbuilt village sites and trees will stand.
(7) The Tribunals decision rejecting the claim for 15% solatium is set aside and the claim for solatium will be awarded as directed in the judgment.
(8) The claim for compensation for grazing fees is rejected.
These are the points common to all the petitions and the points raised in addition to the above have already been dealt with and decided by us separately under the heading of each village.
Mr. Sompura learned Assistant Government Pleader asked us to fix the amount of fees of advocate in each petition. Even though we have decided that each party will bear and pay its own costs we fix the amount of advocates fees in each petition at Rs. 250/-. Of course this will be between the respective parties and their advocates.