Bhargava, J. - (1.) The appellants in all these appeals were holders of barkhali tenure in two villages situated in the State of Gujarat in areas which were formerly part of the Part B State of Saurashtra until Saurashtra was merged in the State of Bombay. When the State of Saurashtra was formed, it included areas which were ruled by the Indian Princes in which the tenure systems were different from the systems in British India. In 1948, by Ordinance XXV of 1948 issued by the Raj Pramukh, a number of Acts in force in the Province of Bombay were applied to the State of Saurashtra. That Ordinance was amended by Ordinance XXXIX of 1948. The effect of this amendment was that, under the amended Ordinance XXV of 1948, the Bombay Land Revenue Code V of 1879 (hereinafter referred to as "the Code") with certain adaptations and modifications became applicable to Saurashtra. The main modifications, with which we are concerned, are that Chapters VIII and VIII-A of the Code were not applicable to the State of Saurashtra and Section 52 was made applicable, subject to the omission of the reference to Chapter VIII-A in that section. There was a further amendment of Ordinance XXV of 1948 by Ordinance LXIV of 1949 the result of which was that entry relating to Section 52 of the Code in Ordinance XXV of 1948 was omitted. The consequence of this omission was that Section 52 became applicable to the State of Saurashtra, including the reference to Chapter VIII-A which existed in it in the original Code. Further, Ordinance XXV of 1948 was so amended that Chapters VIII and VIII-A also become applicable to the State of Saurashtra with some slight modifications. Thus, after this ordinance, matters relating to land revenue in the State of Saurashtra were governed by the Bombay Code applied to that State with the modifications laid down in the two Ordinances XXXIX of 1948 and LXIV of 1949 mentioned above.
(2.) In this state of law, the Saurashtra Legislature passed two Acts for abolishing certain tenure rights. One was the Saurashtra Land Reforms Act No. XXV of 1951 (hereinafter referred to as "the Reforms Act") for abolition of Girasdari tenure, and the second was the Saurashtra Barkhali Abolition Act No. XXVI of 1951 (hereinafter referred to as "the Act") for abolition of Barkhali tenure. As a result of the abolition of the rights of the appellants, they became entitled to compensation under Section 18 of the Act which provided for payment of cash annuity calculated on the basis of the assessment in respect of the land in possession of the tenants of the holders of Barkhali tenure. The assessment in respect of the land, on the basis of which compensation was to be calculated and annuity paid, was defined in Section 19 of the Act which reads as follows:- "19. For the purposes of this Act, assessment shall mean in relation to any land, until the village in which such land is situate is surveyed and settled, assessment calculated on 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." In pursuance of the power given to the Mamlatdar under Section 19 (2) read with Section 19 (1) of the Act, the Mamlatdar determined the assessment in accordance with the principle laid down in S. 19 (1), and the initial payment as well as some installments of the annuity were paid to the appellants on the basis of the assessment so determined. In 1959, however, the Government amended the Saurashtra Land Revenue Rules framed under the Code as it had been adapted and applied to Saurashtra area and substituted R. 17 for the existing Rule 17 as it had been inserted in 1957. This Rule 17 laid down the procedure for the assessment of the amount to be paid as land revenue on all lands in Saurashtra which were not wholly exempt from payment of land revenue and on which the assessment had not been fixed under the provisions of Chapter VIII-A. This Rule, thus, laid down the method to be adopted by the Collector for fixing the assessment under Section 52 of the Code. This amended Rule 17 was brought into force on the 20th May, 1959 and, in pursuance of this Rule, the Collector determined the assessment payable, inter alia, on the lands which were held under Barkhali tenure by the appellants. Consequent on this assessment by the Collector under Section 52 of the Code, the Government started paying annuity under Section 18 of the Act to the appellants on the basis of this assessment instead of continuing payment on the basis of the assessment which had been made by the Mamlatdar under Section 19 of the Act. This was challenged by the appellants in the High Court of Gujarat, but unsuccessfully. Consequently, the appellants have come up to this Court in these appeals on the basis of certificate of fitness granted by the High Court under Article 133 (1) (c) of the Constitution.
(3.) In the High Court, various grounds were taken for challenging the validity of the action of the Government in paying annuity on the basis of the Collector's assessment under Section 52 of the Code read with Rule 17 of the Rules and it was urged that the appellants were entitled to continue to receive payment on the basis of the assessment which had been made by the Mamlatdar under Section 19 of the Act. The principal ground which we think has considerable force, was that assessment under Section 19 of the Act has been given a special meaning, and payment has to be made in accordance with the assessment mentioned in Section 19 of the Act and not in accordance with the assessment made by the Collector under Section 52 of the Code. Under Section 19 (1) of the Act, assessment is defined to mean assessment calculated on an arithmetic average of assessment leviable in the surrounding and adjoining khalsa or assessed non khalsa lands or villages which has to be determined by the Mamlatdar after holding an enquiry under Section 19 (2). This meaning continues to apply "until the village in which such land is situate is surveyed and settled". The contention on behalf of the appellants was that the operations carried out by the Collector under Section 52 of the Code did not result in the villages in which the lands of the appellants are situate being surveyed and settled, even though the Collector did make an assessment under Section 52 of the Code. On the other hand, the Government applied the assessment made by the Collector under Section 52 of the Code on the basis that the words "surveyed and settled" as used in Section 19 (1) of the Act are not defined and the requirements of those words must be held to be satisfied when the Collector made the assessment under Section 52 of the Code in accordance with the principles laid down in Rule 17 of the Rules. It was urged that the words "surveyed and settled" were not used in any technical sense and all that was required was that, in substance, there should be a survey and settlement resulting in assessment. Once that is done, the assessment made by the Mamlatdar becomes ineffective and the new assessment, which is the result of survey and settlement, takes its place for purposes of determination of the compensation payable under Section 18 of the Act.;