M.P.THAKKAR - (1.) Can a Wanta holder whose Wanta rights in land are abolished by the Legislature claim compensation for the loss of opportunity to sell water from a natural pool formed by the perennial flow of waters of a river which was a Natures gift and for the creation of which pool of water he did not have either to sweat or toil or to pay any price ? The view taken by the Gujarat Revenue Tribunal (G.R.T.) that the petitioner a Talukdari Wanta holder of lands whose rights in the lands and the tenure on which the lands were held were abolished under the Gujarat Surviving Alienations Abolition Act 1963 (Act) was not entitled to claim compensation in respect of extinguishment of his rights in respect of a pool of water created by the perennial flow of waters of river Mahi under sec. 14 of the Act is challenged by way of this petition under Article 227 of the Constitution of India directed against order at Annexure B dated August 30 1972 rendered by the G. R. T.
(2.) The petitioner was a Wanta holder in respect of Sonipur situated in Taluka Taluka of Kaira District. He held certain lands on a tenure known as Wanta tenure. The tenure was abolished as per the ACt which came into force on October 1 1963 The rights of the petitioner in res- pect of the lands held by him on the aforesaid tenure were extinguished as per sec. 11 which reads as under : 11 All public roads lands and paths the bridges ditches dikes and fences on or beside the same beds of creeks below high water mark and beds of rivers streams and nallas lakes wells tanks canals and water courses and all standing and flowing water and all unbuilt village site lands all forest lands all pasture lands all waste lands and all uncultivated lands (excluding lands used for building or other non-agricultural purposes) and all mines whether being worked of not and minerals. whether discovered or not and all quarries which are situate within the limits of any alienated land shall except in so far as any rights of any person other than the alienee may be established in of over the same and except as may other. wise be provided by any law for the time being in force vest in. and shall be deemed to be with all rights in or over the same or appertaining thereto the property of the State Government and all rights held by an alienee in such property shall be deemed to have been extinguished and it shall be lawful for the Collector subject to the general or special orders of the State Government to dispose of there as he deems fit subject always to the rights of way and other rights of the public or of individuals legally subsisting. Explanation.-For the purposes of this section land shall be deemed to be uncultivated if it has not been cultivated for a continuous period of three years immediately before the appointed day. Compensation was claimed by the petitioner under sec. 14 of the Act which provides thus : 14 Any alienee having any rights or interest in any property referred to in sec. 11 shall if he proves to the satisfaction of the Collector that he had any such rights or interest be entitled to compensation in the following manner namely : (1) if the property in question is waste or uncultivated but is cultivable land or pasture land the amount of compensation shall not exceed three times the assessment of the land; and where the waste or uncultivated land is not cultivable the amount of compensation shall not exceed the amount of annual assessment livable thereon: Provided that if the land has not been assessed the amount of compensation shall not exceed such amount of assessment as would be livable in the same village on the same extent of similar land used for the same purpose; (ii) If the property in question is land over which the public has been enjoying or has acquired a right of way or any individual has any right of easement the amount of compensation shall not exceed the amount of the annual assessment livable in the village for uncultivated land in accordance with the rules made under the Code or if such rules do not provide for the levy of such assessment such amount as in the opinion of the Collector shall be the market value of the right or interest held by the claimant; (iii) In the case of minerals the amount of compensation shall be equivalent to the average of the net annual income received by the alienee in respect of minerals during the three years immediately preceding the date of vesting; (iv) in the case of forest land the amount of compensation shall be equivalent to seven times the average of the net annual income of forest revenue including grazing fees if any received by the alienee during the ten years immediately pre ceding the date of vesting such annual income being calculated on the basis of data regarding average yield for the said ten years; (v) If there are any trees or structures on the land to which clause (i) or (ii) applies the amount of compensation shall be the market value of such trees or structures as the case may be. Explanation.For the purposes of this section the market value shall mean the value as estimated in accordance with the provisions of sub-sec. (1) of sec. 23 and sec. 24 of the Land Acquisition Act in so far as the said provisions may be applicable. The petitioner claimed compensation in respect of the various rights including the right claimed by him in respect of income derived by the sale of water from a pool known as Kaldhara pool where water used to collect on account of perennial flow of water of river Mahi. In the present petition we are not concerned with the claim made by the petitioner on counts other than the aforesaid count. In respect of the income from the aforesaid Kaldhara pool a sum of Rs. 5 94 0 was claimed by the petitioner before the District Deputy Collector at Anand. The District Deputy Collector rendered his award on September 9 1971 and awarded a total sum of Rs 2 89 944 from out of which a sum of Rs. 2 85 120 was awarded in connection with the loss of income in respect of the sale of water from Kaldhara pool. The petitioner felt that the compensation awarded to him was inadequate and preferred an appeal to the G. R. T. under sec. 18 of the Act. The G.R.T. upheld the contention of the State that having regard to the scheme of compensation embodied in sec. 14 no compensation was climbable in respect of the extinguishment of the right of the petitioner in the water in the Kaldhara pool. Thereupon the petitioner has approached this Court by way of the present petition.
(3.) Compensation in respect of the extinguishment of the right in relation to the water in Kaldhara pool was claimed under clause (v) of sec. 14 on the premise that the Kaldhara pool was a structure within the meaning of the said clause. Now it is provided by clause (v) that if there are any trees or structures on the land to which clause (i) or (ii) of sec. 14 applies the amount of compensation shall be the market value of such trees or structures as the case may be. In the first place a pool (which has come into existence on account of the forces of nature) in which the perennial water from the Mahi river collects in the ordinary course of nature cannot fall within the description of a structure. The expression structure has been defined in the Concise Oxford Dictionary Fifth Edition as under : structure n. Manner in which a building or organism or other complete whole is constructed supporting frame work or whole of the essential parts of something make construction; adj.; thing constructed complex whole a building The expression structure as employed in clause (v) would apply to some erection made on the land by human effort. Besides in clause (v) a reference has in terms been made to structures on the land to which clauses (i) and clause (ii) apply. By making a reference to the aforesaid two clauses the description of the land contained therein is incorporated by reference. The result would be that only such structures as are erected on lands which are waste or uncultivated lands or pasture lands within the meaning of clause (i) and lands over which the public has been enjoying a right of way or right of easement as described in clause (ii) of sec. 14 would fall within the description of structures as contained in clause (v). A natural pool of water like the Kaldhara pool in respect of which compensation is claimed can by no stretch of language or of the definition contained in clause (i) or clause (ii) of sec. 14 fall within the definition of structure within the meaning of sec. 14(v). The view taken by the G.R.T. cannot therefore be successfully assailed. ;