Baghawat, J. - (1.) These appeals are directed against the orders of the Gujarat High Court passed under Art. 227 of the Constitution revising the appellate orders of the Bombay Revenue Tribunal modifying certain awards of the Special Deputy Collector, Ahmedabad, claims for compensation under Sections 7 and 14 of the Bombay Taluqdari Abolition Act 1849 (Bombay Act LXII of 1948) were filed before the Collector by the Taluqdars of certain villages in the district of Ahmedabad. The Collector made his awards of compensation under Sections 7 and 14. The claimants filed ap -peals before the Revenue Tribunal and later petitions under Art:227 of the Constitution to the High Court. The present appeals are flied by the State of Gujarat and some of the claimants. The principal matters in controversy m these appeals relate to the award of compensation under the head; (i) difference in jama and full assessment, (ii) solatium of 15 per cent on the market value, (iii) irrigational bunds, tanks and wells and (iv) river and river beds.
(2.) Excellent accounts of the history and incidents of the taluqdari tenures are given in Dr. Govind D. Patels Agrarian Reforms in Bombay, 1950, Mr. J. B. Peile's Report, Government Selection No. CVI New Series, p. 13, Mr. L. Robertson's Report on the conditions of the taluqdars of the Ahmedabad district 1903, statement of objects and reasons for Bill No. 6 of 1885 printed in Bombay Government Gazette, dated the 28th December, 1885, Part V, at page No. 65 and Nawab Sardar Narharsinghji Ishvarsinghji vs. Secretary of State, 48 Bom LR 167. The origin of the Gujarat taluqdars may be traced to Moghul and pre-moghul times. They are found mainly in the districts of Ahmedabad, Kaira, Broach and the Panchmahals. The leading characteristics of the taluqdari tenure is that the taluqdari estate is neither alienated nor unalienated but is proprietary. Until 1862 the taluqdars were legally though incorrectly regarded as mere lease holders. From 1862 till 1888 they were full proprietors with unlimited powers of alienation. From 1888 onwards they were full proprietors with restricted powers of alienation. Their estates were subject to payment of a jama to the Government. Originally the jama was regarded as u tribute but later it became a roughly calculated tax on the rental, then a land tax and finally land revenue. Acts were passed from time to time for ameliorating the conditions of the taluqdars. Since 1888 the taluqdari villages and estates were governed by the provisions of the Gujarat Taluqdar's Act, 1888 (Bom. Act VI of 1888) . Under Section 2 (1) (c) of this Act jama meant land revenue payable by the taluqdars to the Government. Section 4 empowered the Government to direct a revenue survey of a taluqdari estate under the provisions of the Bombay Land Revenue Code, 1879. Sections 22 and 23 deal with the taluqdar's jama: "22. (1) If a taluqdar's estate, or any portion thereof is not wholly or partially exempt from land-revenue and it liability to payment of land revenue is not subject to special condition" 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 assessment 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. 23. (1) Nothing in this Act shall be deemed to affect 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 jama was usually fixed (uddhad) in respect of the estates in Kaira and Broach but those in Ahmedabad and Panchmahals were liable to revision at every revisional settlement. The fluctuating jama in respect of these latter estates could under S. 22 be fixed at an amount equal to the full survey assessment of all the lands comprised within the estate. In practice the jama of the claimants' estates in Ahmedabad was limited to about 450 per cent of the full assessment. As a measure of agrarian reform the Government decided to abolish the taluqdari tenures altogether. Accordingly the Bombay Taluqdari Tenure Abolition Act, 1949 was passed on January 24, 1950. It came into force on August 15, 1950. It extends to the districts of Ahmedabad, Kaira, Broach and Panchmahals. It repealed the Gujarat Taluqdars' Act of 1888 and certain other special Act' relating to taluqdars. Section 3 abolished the taluqdari tenure and extinguished all incidents of the tenure attached to any land comprised in a taluqdari estate save as provided in the Act. Under Section 4 all revenue surveys and settlements made under Section 4 of the Gujarat Taluqdars Act, 1888 are deemed to have been made under Chaps. VIII and VIII-A of the Land Revenue Code. By Section 5 (1) (a) all taluqdari lands are henceforth liable to the payment of land revenue in accordance with the provisions of the Land Revenue Code and the rules made thereunder. But this provision does not affect the right of any person to hold any taluqdari land wholly or partially exempt from the payment of land revenue under a special contract or any other law for the time being in force [S. 5 (2) (a) ] nor the right of any person to pay jama under any agreement or settlement recognised under Section 23, or under a declaration made under Section 22 of the Gujarat Taluqdars' Act so long as such agreement, settlement or declaration remains in force [S. 5 (2) (b) ]. Section 5 (1) (b) provides that a taluqdar holding any taluqdari land shall be deemed to be an occupant within the meaning of the Land Revenue Code or any other law for the time being in force. Section 6 provides that all public roads, lanes, etc., not situate within the limits of the watans belonging to a taluqdar in a taluqdari estate shall vest in the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished. Section 7 provides for payment of compensation to taluqdars for extinguishment of rights under Section 8. Section 14 provides for payment of compensation for extinguishment or modification of any other right in any land where such extinguishment or modification amounts to transference to public ownership of such land or any right in or over such land. Section 17 makes applicable provisions of the Land Revenue Code to all taluqdari lands with certain modifications Sections 8, 9 and 10 pro vice for appeals from the Collector's award. Section 12 provides that the award made by the Collector and the decision of the Bombay Revenue Tribunal on appeal shall be final and conclusive and shall not he questioned in any suit or proceeding in any court. The Act is protected by Article 31-B of the Constitution. It was amended from time to time. Clause (a) of Section 5 (2) was deleted by Bombay Act 42 of 1958. Section 5-A was inserted by Bombay Act I of 1955. Section 5-A made a permanent tenant and an inferior holder in possession of any taluqdari land an occupant in respect of such land on payment of compensation to the taluqdar.
(3.) In these appeals the taluqdars claim compensation for the loss of benefit of the difference between the jama and the full assessment. The jama payable under the settlements made before the Abolition Act was 60 per cent of the total assessment Their rights to pay the jama, only under those settlements were not affected in view of Section 5 (2) (b) . They have obtained the full benefit of the concessional jama while the settlements remained in force. The period of those settlements have now expired and they are now liable to pay full assessment. They have thus suffered a loss of 40 per cent of the land revenue of the villages. They claim compensation for this loss under S. 14 (1) of the Abolition Act which reads:- "14. (1) If any person is aggrieved by any of the provisions of this Act as extinguishing or modifying any of his rights in any land other than those in respect of which provision for the payment of compensation has been made under Section 7 and if such person proves that such extinguishment or modification amounts to the transference to public ownership of such land or any right in or over such land, such person may apply to the Collector for compensation within a period of twelve months from the date on which this Act comes into force." "Any person" in Section 14 (1) includes a taluqdar. To get compensation under the section the claimant must establish firstly that his rights in any land other than those for which provision for compensation is made under S. 7 has been extinguished or modified and secondly that such extinguishment or modification amounts to the transference to public ownership of such land or any right in or over such land. The taluqdars contend that they had the right to pay a jama not exceeding 60 per cent of the survey assessment of the lands comprised in the estate. According to them the Government had issued directions under Section 22 (1) of the Gujarat Taluqdars' Act, 1888 so limiting the jama. They say that such direction is to be found in the memorandum of the Government of Bombay issued on October 2, 1914 with reference to the recommendation made by the Commissioner. Northern Division. in his letter dated April 13, 1914. The High Court has referred to these documents in some detail. It appears that the Gujarat Taluqdari Bill was then pending before the Legislative Council. The memorandum shows the Government's willingness to incorporate in the Bill suitable provision regarding the fixation of the jama. In our opinion, the memorandum was not a direction under Section 22 (1) nor did it create a legal right in the taluqdars to pay a jama of 60 per cent of the survey assessment. ;