Rangildas Varajdas Khandwala v. Collector of Surat and Others.

Wonchoo J. been rejected by this Court in Maharaj Umeg Singh

and others v. The State of Bombay and others ('). We also reject it for reasons given in tho two cases cited. The challenge therefore tu the constitutionality of the Act fails in the present appeal also.

This brings us to the contention of the appellant that in any case the Collector's order to the effect that the land should be &BBessed under s. 52 of the Code as non-agricultural is not correct. W c a.re of opinion that there is nu force in this contention either. Under s. 4 of the Act, all personal inams have been extinguished &nd sa.vo as expressly provided by or under tho Act, all rights legally subsisting on the said date in respect of such personal in&ms are also extin-guished. Therefore the appellant cannot claim pro-tection from being assessed fully after the Act came into force. Section 5 makcB it dear that all ina.m lands shall be liable to the payment of land-revenue in accordance with the provisions of tho Code &nd would thus be liable to full assessment &R provided by the Code. The appellant however relied ou s. 7 of the Act &nd contended that s. 7 created an exception to es. 4 and 5 with respect to lands of inamdars used fur building or for other non-agricultural purposes and therefore the appellant's in&m land which was used entirely for non-&gricultural purposes (namely, build. ing) could not be assessed under s. 5 of the Act. As we reads. 7, we find no warrant for holding that it is an exception to ss. 4 and 5. As already pointed out, s. 4 abolishes personal inams and tho rights of inam-d&rs witli respect to such inams and s. 5 makes a.II inam villages or inam lands subject to the payment of full assessment of land.revenue in accordance with the Code. Section 7 deals with vesting of certain. parts of in&m land~ in the State, (namely, public roads, lanes and paths, all unbuilt village site lands, '96°. all waste lands and a.II uncultivated '!ands and so on);

but an exception has been ma.de so far as vesting is Rangildas Varajdas concerned with respect to lands used for building or Khandwala other non-agricultural purposes by the ina.mdar. The v. appellant relies on this exception and it is urged on Collector of su,.t his behalf that this exception takes out the land so w anchoo 1. excepted from the provisions of sS: 4 and 5. This reading of s. 7 is in our opinion incorrect. That sec.

tion vests certain parts of inam lands in the Govern· ment and but for the exception even those ina.m lands which were used for building and non-agricultural purpose would have vested in the Government. The exception made in s. 7 only saves such inam lands from vesting in the Government and no more. The result of the exception is that such ina.m lands do not vest in the Government and remain what they were before and a.re thus subject to the provisions of ss. 4 and 5 of the Act. The appellant therefore cannot claim because of the exception contained in s. 7 that the lands excepted· from vesting a.re not subject to ss. 4 and 5 of the Act. .The argument therefore based on s. 7 must fail.

The next contention on behalf of the appellant is that the Collector has no power to assess this land to non-agricultural assessment under s. 52 read with ss. 45 and 48 of the Code. Section 45 lays down that all land unless specially exempted is liable to pay land-revenue. Section 48 lays down that the land revenue leviable on ariy land shall be assessed with reference to the use of the land (a} for the purpose of agriculture, (b) for the purpose of building .and (c) for any purpose other than agriculture or building. Read-ing the' two sections together it is obvious that the assessmeµt depends,upon the Ulltl to which the land is put and is to be ma.de according to the rules framed under the Code. In the present case it is not disputed that the land of the appellant is not being used for agriculture and is actually being used for non-agricul-tural purposes, namely, for the purpose of building ;

therefore, if the land is to be assessed, as it must now be assessed iu view of s. 5 of the Act to full assess-

956 SUPHE~IE COURT REPORTS [19611

1960 ment, it can only be assessed a.s non-a.gricultura.l. For

the purpose of such assessment it is immaterial when Rungildas the non-agricultural use of tho land started. lt was va.aJdas Khandw•ia in a. special category being a. persona.I inam land and

v. was upto the timu tho Act ca.me into force governed Colleclu• of Su>al by the law relating to persona.I inams. The persona.I

inams and a.II rights thereunder were abolished hy the Wamhoo 1· Act and tbe land is now to be assessed for the first

time to full assessment under s. 5 of the Act read with the provisions of the Code; it can only be assessed as non-a.gricultura.l la.nd for that is the use to which it is being put now when tho assessment is to bo mado. Section 48 makes it clear that the assessing officer when assessing the land should look to tho use to which it is being put at the timo of the assessment and assess it according to such use. As the assessment is to be ma.de after tho coming into force of the Act it has to be on non-agricultural basis for that is the use for which the land is being put a.t the time of assess-ment.

Lastly, it is urged thats. 52 which gives power to the Collector to make assessments of lands not wholly exempt from the payment of land-revenue does not apply to this case because here the assessment has been fixed under the provisions of Ch. VI II-A of the Code ands. 52 only applies when no assessment has been fixed under Ch. VI II-A. Reference was also ma.de to s. 117-R which appears in Ch. VIII-A. Tna.t Chapter was introduced in the Code in 1939 and deals with assessment and settlement of land-revenue on a.gricultura.l la.nds. Section 117-R is a. deeming provi-sion and lays down that a.II settlements of la.nd-revenue hereto before ma.de and introduced and in force before the c01µmencement of the Bombay Land Revenue Code (Amendment) Act, 1939, by which this Chapter was introduced in tho Code sha.11 be deemed to have been ma.de and introduced in accordance with the provisions of this Chapter and shall notwithstand-ing anything contained ins. 117-E (which deals with the duration of a. settlement) be deemed to continue in force until the introduction of a. revision settlement. The argument is that because of this deeming provision, the settlement on which this land was held 1960 as inam land must be deemed to have been made under this Chapter and therefore it cannot be said that no Rangildas assessment has been fixed under the provisions -of Ch. Varajdas Khandwala VIII-A in this case. We are of opinion that there is v. no force in this argument. Section 117. R of the Code Collector of SuYa is a deeming provision. Section 52 on the other hand when it says that that section will not apply where Wanchoo J. assessment has been fixed under Ch. VIII-A, refers to actual assessment under Ch. VIII-A and not to what is deemed to be an assessment under that Chapter by virtue of s. 117-R. It is not in dispute that there has in fact been no assessment under Ch. VIII-A in this case. We are therefore af opinion that as the land in this case was not wholly exempt from revenue and as in fact no assessment has been fixed on this land under Ch. VIII-A, s. 52 would apply and the Collec-tor would have power to make an assessment in the manner provided by that section.

There is therefore no force· in this appeal and it is hereby dismissed with costs.

Appeal diBmiBBed.

MADHAORAO PHALKE

v.

October 3.

THE STATE OF MADHYA BHARAT

(B. P. SINHA, C. J., J. 1. KAPUR,

·p. B. GAJENDRAGADKAR, K. SuBBA RAo and

K. N. WANOHOO, JJ.)

Hereditary Military Pension-Bachat-Right to receive guaran-teed by Katambandis issued by Rulers of Gwalior-If can .be termi-11ated by executive order-Kalambandis, if existing law-Katamban-dis of r9rn and i935 (Gw.alior)-Constitution of India, Art. 372.

The appellant was the recipient of a hereditary military pension called Bachat granted by the Rulers of Gwalior to his ancestors in recognition of military service. The right to receive the said pension was recognised by the Kalambandis of ":I i912 and 1935 issued by the said Rulers. When Gwalior inte-

grated wilh Indore and Malwa in i948 to form a union, s. 4 of

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6 of 1959.

Appeal by special leave from the judgment e.nd order dated March 5, 1957, of the Bombay High .Court in Special Civil Application No. 3255 of 1956.

Dhan Prasad Balkrishna Padhye and P. K. Chatter-jee, for the appellant.

H. N. Sanyal, Additional Solicitor.Generai of India, N. P. Nathwani, K. N. Hathi and R. H. Dhebar, for the respondents.

1960. October 3. The Judgment of the Court was delivered by IYanchoo ] . • WANCHOO J.-This appeal hy special leave raises

questions relating to the constitutionality and inter-pretation of certain provisions of the Bombay Perso-nal Iuams Abolition Act No. XLII of 1953, (herein-after called the Act). The brief facts neceBB&ry for present purposes are these. The appellant wae the holder of a personal inam which he had purchased from the original inamdar to whom a Sanad had been issued under Bombay Act No. VII of 1863. The land which forms part of the inam was originally in village ,96o Athwa but is now in the suburbs of · the city S l of Surat.

The appellant was paying R s. 7 as a ami and Rangildas varajdas Rs. 6-3-0 as quit.rent, the full assessment of the land khandwala being Rs. 56-8-0. In November, 1952, the City· v. Survey Officer of Surat wanted to levy non-agricultu. Collector of Surat ral assessment on this land under s. 134 of the Bom-bay Land Revenue Code, 1879, (hereinafter called the Wanchoo f. Code), as the land was being used for non-agricultural purpose and a large bungalow had been erected on it. The appellant objected to this and eventually in September, 1954, he wa:s informed by the Collector that he would not be assessed under s. 134 of the Code but was liable to non-agricultural assessment with effect from August 1, 1955, in view of proviso (b) to s. 4 of the Act. The appellant objected to this also.

The Collector decided on July 28, 1955, that the land was liable to full assessment from August l, 1955, as non-agricultural under s. 52 of the Cod,e. The appel-lant then went up 'in appeal to the Bombay Revenue Tribunal which was dismissed. He filed a writ peti-tion in the High Court challenging the order of the Revenue Tribunal and also challenging the constitutio-nality of the Act.' The High Court rejected the appli-cation. It relied on an earlier decision of that Court so far as the challenge to the constitutionality of the Act was concerned. It also held that the order of the Collector by which non.agricultural assessment }Vas to be levied on the applicant from August 1, 1955, was correct. The appellant then applied for a certifi- !Jate to appeal to this Court which was rejected. He then filed a special leave petition in this Court and was granted special leave ; and that is how the matter has come up before us.

So far as the constitutionality of the Act is concern-ed we have considered it in Gangadharrao Narayanrao Mafumdar v. State of Bombay (1) in which judgment is being delivered to-day, and have upheld the Act.

The only fresh point that has been urged in this con- .

neotion is that in view of Art. 294(b) of the Constitu-tion and in view· of the fact that the holder was given 1960 a San&d when his inam w&s recognized, it was nut Rang•ldas open to the State of Bombay to en&ct & law which varajdas would in &ny way vary the terms of the S&n&d. This Kha .. dwala argument. based on the immutability of S&n&ds was

v. rejected by the Feder&! Court in Thakur Jagannath Colleclor 0! Surat Baksh Singh \'. The United Provinces(') &nd h&B also