# SAYED REHMANMIYA MUSTAFAMIYA & OTHERS v. THE STATE OF GUJARAT & OTHERS

- **Citation:** [1970] 3 S.C.R. 293
- **Court:** Supreme Court of India
- **Decided:** 1969-12-02
- **Bench:** V. Bhargava, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sayed-rehmanmiya-mustafamiya-others-v-the-state-of-gujarat-others-4915
- **Pages:** 9

## Headnote

Ho111hay lt11td R£'l'et111e ('ode (Act V of 1879) s. 52 Chaps. VIII and
VIII-A and Sa11rashtrt1 Barkha!i Aholitio11 Acl (16 of J95l) s. 19-Scope
of.
Ordinance XXV of J 948, issued by the Raj Pran1ukh of the then St<th~
of Saurashtra. 'A-'as amended by Ordinance XXXIX of 1948 a11J Ordi-
~ancc LXlV of 1949, "-'ith _the result that matters relating to lanJ revenue
1n the State Wl.~e governed by the Bombny Land Revenue Code. Sc<."lion
52 of the Code gives power to the Collecto·r for fixing the asscssn1cnt of
the an1ount to he paid as land revenue on all lands, Chap. VIII deals v.i1h
1_he procedure for "survey·, and Chap. VJIJ-A deals with the procedure
for 'settlement".
In 1951, the Saurashtra Barkhali Abolition Act. 1951.
for <1holition of Barkhali tenure was passed.
Section 18 of the
Act
provided fOr payn1cnt Of cash annuities as
compensation
to
Barkhali
tenure-holders calculated on the basis of the ~1ssc~sn1cnt in respect of 1hc
land in possession of the ten.ants of such holders.
S~1ch asscssn1ent in
relation to any
land.
until the village in which such Janel is situate ir
\Urveyed {Ind ,\'ettled, is definell in -::;, 19(1) and has to he <lctcrn1incd by
the Marnlatdar after 'holding an inquiry under s. 19(2).
The appellants, who were BarkhaJi tenure-holders. were paid instaln1ents of annuity till 1959 on the basis of asses~n1ent determined under s.
19(1) and (2). In 1959. the existing r. 17
of the Saurashtra Ltntl
Revenue Rules framed under the Bombay Land
RcvC'nuc
Code
\i.·as
llelctcd antl a new rule was substituted. This rule laid tlown the n1etho<l
10 be adopted by the Collector for fixing the assessment under s. 52 of
the Colle, but the procedu're did not invol1·e ony Slt1Tey or se~tle111e11t
un<ler Chaps. VIII an<l Vlll-A of the Co<lc.
Jn pursuance of this rule.
the Collector determined under s. 52 of the Code, the assessment payable
on the lan<l.s which were held under Barkhali·tenure by the appellants.
The Government then paid annuity un<ler s. 18 of the Abolition Act on
the basi ... of the Collector's assessment instea<l of continuing payment on
the basis of the assessment made by the Mamlatdar under s. 19 of the
Act.
This was challenged by the appellants unsuccessfully in the High
Court.
In appeal to this Court,
HELD : Under s. 19 of the Abolition Act, the assessment made bv
the Marnlatdar under that section continues
in
force
until there iv a
s11rvey and settle111ent in accordance with (,haps. VIII and VITI-A of the
Code. and there having been. no such survey and settlement of the viUagcs
H
of the appellant, the assessment made by. the Mamlatdar continued to be
the assessment for purposes of the Aboht1on Act. Therdore, the Govern·
mcnt was not justified in varying the payment of annmty under s. 18 of
the Act. [300 G-HJ
!..7Sup.CI(NP)/70-9
294
SUPREME COURT REPORTS
[1970] 3 S.C.R.·
(a) By virtue of s. 2(v) of the Barkhali Abolition Act and s. 2(33) • A
of the Saurashtra Land Reforms Act, 1951, all words and expressions,
used, but not defined in the Abolition Act, have the meanings assigned to
them in the Bombay Land Revenue Code.
The words 'surveyed' and
'settled' are not defined in the Abolition Act, but the expression 'survey
settlement' is defined in the Code as including a settlement made under
the provisions of Chap. VIII-A of the Code. Therefore, at the time when
the Abolition Act was passed. the only manner of survey which was laid
down by any law applicable in the State was that contained in Chap. VIII
of the Code, and the only manner of settlement was that contained in
Chap. VIII-A; that is, the words 'surveyed' and 'settled' used in s. 19 of
the Abolition Act were intended to refer to the survey aiid settlement
under Chaps. VIII and VIII-A of the Code. The Legislature envisaged
that, in areas in which there had been no survey and settlement in accordance with Chaps. VIII and Vlll-A such operations would be undertaken.
But, for the intervening period, the Legislature, in s. 19 of the Abolition
Act, laid down

## Text

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293
SAYED REHMANMIYA MUSTAFAMIYA & OTHERS
v.
THE STATE OF GUJARAT & OTHERS
December 2, 1969
[V. BHARGAVA AND K. S. HEGDE, J J .]
Ho111hay lt11td R£'l'et111e ('ode (Act V of 1879) s. 52 Chaps. VIII and
VIII-A and Sa11rashtrt1 Barkha!i Aholitio11 Acl (16 of J95l) s. 19-Scope
of.
Ordinance XXV of J 948, issued by the Raj Pran1ukh of the then St<th~
of Saurashtra. 'A-'as amended by Ordinance XXXIX of 1948 a11J Ordi-
~ancc LXlV of 1949, "-'ith _the result that matters relating to lanJ revenue
1n the State Wl.~e governed by the Bombny Land Revenue Code. Sc<."lion
52 of the Code gives power to the Collecto·r for fixing the asscssn1cnt of
the an1ount to he paid as land revenue on all lands, Chap. VIII deals v.i1h
1_he procedure for "survey·, and Chap. VJIJ-A deals with the procedure
for 'settlement".
In 1951, the Saurashtra Barkhali Abolition Act. 1951.
for <1holition of Barkhali tenure was passed.
Section 18 of the
Act
provided fOr payn1cnt Of cash annuities as
compensation
to
Barkhali
tenure-holders calculated on the basis of the ~1ssc~sn1cnt in respect of 1hc
land in possession of the ten.ants of such holders.
S~1ch asscssn1ent in
relation to any
land.
until the village in which such Janel is situate ir
\Urveyed {Ind ,\'ettled, is definell in -::;, 19(1) and has to he <lctcrn1incd by
the Marnlatdar after 'holding an inquiry under s. 19(2).
The appellants, who were BarkhaJi tenure-holders. were paid instaln1ents of annuity till 1959 on the basis of asses~n1ent determined under s.
19(1) and (2). In 1959. the existing r. 17
of the Saurashtra Ltntl
Revenue Rules framed under the Bombay Land
RcvC'nuc
Code
\i.·as
llelctcd antl a new rule was substituted. This rule laid tlown the n1etho<l
10 be adopted by the Collector for fixing the assessment under s. 52 of
the Colle, but the procedu're did not invol1·e ony Slt1Tey or se~tle111e11t
un<ler Chaps. VIII an<l Vlll-A of the Co<lc.
Jn pursuance of this rule.
the Collector determined under s. 52 of the Code, the assessment payable
on the lan<l.s which were held under Barkhali·tenure by the appellants.
The Government then paid annuity un<ler s. 18 of the Abolition Act on
the basi ... of the Collector's assessment instea<l of continuing payment on
the basis of the assessment made by the Mamlatdar under s. 19 of the
Act.
This was challenged by the appellants unsuccessfully in the High
Court.
In appeal to this Court,
HELD : Under s. 19 of the Abolition Act, the assessment made bv
the Marnlatdar under that section continues
in
force
until there iv a
s11rvey and settle111ent in accordance with (,haps. VIII and VITI-A of the
Code. and there having been. no such survey and settlement of the viUagcs
H
of the appellant, the assessment made by. the Mamlatdar continued to be
the assessment for purposes of the Aboht1on Act. Therdore, the Govern·
mcnt was not justified in varying the payment of annmty under s. 18 of
the Act. [300 G-HJ
!..7Sup.CI(NP)/70-9
294
SUPREME COURT REPORTS
[1970] 3 S.C.R.·
(a) By virtue of s. 2(v) of the Barkhali Abolition Act and s. 2(33) • A
of the Saurashtra Land Reforms Act, 1951, all words and expressions,
used, but not defined in the Abolition Act, have the meanings assigned to
them in the Bombay Land Revenue Code.
The words 'surveyed' and
'settled' are not defined in the Abolition Act, but the expression 'survey
settlement' is defined in the Code as including a settlement made under
the provisions of Chap. VIII-A of the Code. Therefore, at the time when
the Abolition Act was passed. the only manner of survey which was laid
down by any law applicable in the State was that contained in Chap. VIII
of the Code, and the only manner of settlement was that contained in
Chap. VIII-A; that is, the words 'surveyed' and 'settled' used in s. 19 of
the Abolition Act were intended to refer to the survey aiid settlement
under Chaps. VIII and VIII-A of the Code. The Legislature envisaged
that, in areas in which there had been no survey and settlement in accordance with Chaps. VIII and Vlll-A such operations would be undertaken.
But, for the intervening period, the Legislature, in s. 19 of the Abolition
Act, laid down a convenient and summary method of assessment by the
Mamlatdar, which was to be treated as the assessment until the vil/af!e in
which the land i~ situate is surveyed and settled. The Legislature did not
i otend that the Mamlatdar's assessment should be superseded by that of
the Collector under s. 52. because, that section does not at all envisage
a survey and settlement. [297 F-H; 298 B-G]
(b) If the Legislature intended such a supersession, the Legislature
would have laid down that the Mamlatdar's assessment shall remain
effective until an assessment is made under the Code without making any
reference to survey or settlement. [298 HJ
(c) Further, s. 52 of the Code envisages assessment on all lands,
while s. 19 of the Abolition Act refers to survey and settlement of a
village.
Since there could be assessment of revenue on
lands
without
-survey or settlement. of the village, such an assessment could not supersede
that of the Mamlatdar under s. 19. [299 D-F1
·
(d) Moreover, r. 17 requires a very limited action by the Collector
in. classifying and comparing lands for purposes of assessment and is a
mere exercise of a summary power by him until a proper survey and
se!tlement is made.
The Legislature having granted to the Mamlatdar
summary power to make an assessment until there was a regular survey
and settlement, could not have intended it to be superseded bv another
summary assessment by the Collector under s. 52 of the Code. [300 B-E]
CrvrL AP PELLA TE JURISDICTION : Civil Appeals Nos. 2468
and 2470 to 2479 of 1966.
Appeals from the judgment and order, dated July 22, 23,
1965 of the Gujarat High Court in Special Civil Applications
Nos. 572, 695, 974, 861, 930, 931, 949, 1017 of 1963 and 168,
811 and 812 of 1964.
R. M. Hazarnavis, K. L. Hathi and K. N. Bhat for the appellants (in all the appeals).
N. S. Bindra, B. D. Sharma and S. P. Nayar, for the respondents (in all the appeals).
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REHMANMIYA v. GUJARAT (Bhargava, J.)
295
The Judgment of the Court was delivered by
Bhargava, J. The appellants in atl 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 Ordi·
nance XXV of 1948 issued by the Raj Pramukh, a number of
Acts in force in the Province oi 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 adapt~tions and
modifications
became
applicable
to
Saurashtra.
The main modifications, with which we are concerned, are that Chapters VIII and VIII-A of !he 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 s. 52 of the Code in Ordinance
XXV of 1948 was omitted.
The consequence of this omission
was that s. 52 became applicable to the State of Saurashtra, in·
eluding 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 became 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
Ordinance~
XXXIX of 1948 and LXIV of 1949 mentioned above.
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 Girazdari 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 s. 18 of
the Act which provided for payment of cash annuity calculated
on the basis of the assessment in respect of the 1'1!d in posses·
sion of the tenants of the holders of Barkhali tenure.
The
assessment in respect of the land, on the basis of which com·
pensation was to be calculated and annuity paid was defined in
section 19 of the Act which reads as follows :-
296
SUPREME COURT REPORTS
[ 1970) 3 S.C.R.
"19. ( 1) 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 detemtlning 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 detem1ined 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 s. 19
(2) read withs. 19( I) of the Act. the Mamlatdar detemlined the
assessment in accordance with the principle laid down in s. 19
( 1 ) , and the init1al ,payment as well as some instalments 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
Rule 17 for the existing Ruic 17 as it had been inserted in 1957.
This Rule 17 laid down the procedure for the assessment of ilie
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, faid down ilie method to
be adopted by the Collector for fixing the assessment under s. 52
of ilie Code.
This amended Rule 17 was brought into force on
the 20th May, 1959 and, in pursuance of this Rule, the Collector
detennined the assessment payable, inter a/ia, on the lands which
were held under Barkhali tenure by the appellants.
Consequent
on this assessment by the Collector under s. 52 of the Code, the
Government started P,aying annuity under s. 18 of the Act to the
appellants on the basis of this a;;sessment instead of continuing
payment on the basis of the assessment which had been made by
ilie Mamlatdar under s. 19 of ilie Act.
This was challenged by
the appellants in the High Court of Gujarat, but unsuccessfully.
Consequently, the appellants have come up to iliis Court in .these
appeals on the basis of certificate of fitness granted by the High
Court under Article 133 (1 )( c) of the Constitution.
In ilie High Court, various grounds were taken for challenging
the validity of the action of the Government in paying annuity
on ilie basis of ilie Collector's assessment under s. 52 of the Code
read with R. 17 of the Rules and it was urged that the appellants
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REHMANMIYA V, GUJARAT fBhargava, /.)
~97
were entitled to continue to receive payment on the basis of the
assessment which had been made by the Mamlatdar under s. 19
of the Act. The principal ground. which we think has considerable force, was that assessment under s. 19 of the Act has been
given a special meaning, and payment has to be made in accordance with the' assessment mentioned in s. 19 of the Act and not
in accordance with the assessment made by the Collector under
s. 52 of the Code.
Under s. 19(1) of the Act, assessment i'
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 ant enquiry under s. 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 s. 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 s. 52 of the Code.
On the other hand, the Government
applied the assessment made IJy the Collector under s. 52 of
the Code on the basis that the words "surveyed and settled" as
used in s. 19 (I) 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 s. 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 as~essment, which is tlie result of
survey and settlement, takes its place for purposes of detennination of the compensation payable un<kr s. 18 of .the Act.
It is true that the words "surveyed and settled" have not been
defined in the Act; but. in clause (v) of s. 2 of the Act, it is laid
down that all words and expressions used, but not defined, in
the Act shall have the meanings assigned to them in the Refonns
Act. Again, ins. 2(33) of the Refonns Act, it is laid aown that
all words and expressions used, but not defined, in that Act and
defined in the Code shall have the meanings assigned to them in
the Code. . Since the words "surveyed and settled" were not
defined in either of these two Acts, we have to look· to the Code
to find their meaning.
In the Code, the words "survey" and
"settlement" are not separately defined in section 3 which contains the definitions, though the expression "survey settlement" is
defined as including a settlement made under the provisions of
Chapter VIII-A. The word "settlement" itself has been defined
for the limited purpose of Chapter VIII-A in s. ll 7C(1) as.
298
SUPREME COURT REPORTS
[1970) 3 S.C.R.
meaning the result of the operations conducted in a zone in order
to determine the land revenue assessment. Until the year 1956,
instead of the expression "a zone", the words used were "a taluka
or part of a taluka". It will, thus, be seen that, even under the
Code, the two words "survey" and "settlement" were not fully
defined for all purposes. The definition of settlement was limited
by laying down that this word was to connote the meaning given
to it in the definition only in Chapter VIII-A. However, the procedure for survey was fully indicated in Chapter VIII, while the
procedure for settlement was fully laid down in Chapter VIII-A.
It was in this state of law that the Saurashtra Legislature passed
the Act in 1951.
It is, however,· clear that, at the time when
the Act was passed, the only manner of survey which was laid
down by any law applicable in the State of Saurashtra was that
contained in Chapter Vlll of the Code and the only manner of
settlement was that contained in Chapter VIII-A.
There was,
of course, at the same time, provision contained in s. 52 of the
Code for assessment of the amount to be paid as land revenue
<ln all lands; but, in that section, neither the words "survey" nor
"settlement" or any of their derivatives was used. In the circumstances, we consider that the submission ntade by counsel for the
appellants that the words "surv.~yed and settled" used in s. 19 of
the Act were intended lo refer to the survey and settlement under
Chapters VIII and VIII-A of the Code has great force.
The
Legislature, in s. 19. first laid down a convenient method of
assessment by the Mamlatdar by a summary procedure and that
assessment was to be treated as the assessment for all purposes
of the Act until the village in which the land in question may
be situate is surveyed and settled. The Legislature envisaged
that, in areas in which t!Jcre had been no survey and settlement
in accordance with Chapters VIII and VIH-A of the Code, such
operations would be undertaken. But, for the intervening period.
until those operations could be completed, summary power was
given to the Mamlatdar to fix the assessment on the basis of the
guiding principles laid down in that section. In using tjlc expres-
'ion "the village in which such land is situate is surveyed and
settled'', the Legislature appears to have ruled out the aoplicability of the assessment made by the Collector under s. 52 of the
Code, because s. 52 of the Code does not anywhere envisage a
'urvey and settlement in any of the words in that section. If
the Legislature had intended that the Mamlatdar"s assessment
made by the summary manner laid down in s. 19 itself be superseded by any assessment made under the Code,
including an
assessment·by the Collector under s. 52 of the Code, the language
used in s. 19 would certainly have been different.
Instead of
saying that the assessment made by the Mamlatdar under s. 19
is to be effective until the village in which such land is situate is
surveyed and settled, the Legislature could have easily laid down
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REHMANMIYA v. GUJARAT (Bhargava, J.)
299
that that assessment shall remain effective until an assessment is
made under the Code.
In this connection, reference may be
made to section 16 of the Act in which the Legislature laid down
what was to be the land revenue payable on all lands held, on the
commencement of the Act, as Barkhali lands including Gharkhed.
and land allotted 'Under the Act. The provision made in s. 16
was that the lands were liable to payment of land revenue under
the provisions of the Code and the Rules made thereunder. Jn
that section, the Legislature did not make reference to any survey
or settlement. It only laid down that the land revenue payable
was to be as determined under the provisions of the Code and the
Rules made thereunder.
A similar provision could have been
made in s. 19 for superseding the assessment made by the Mamlatdar.
Instead, the requirement prescribed by the Legislature was
that the assessment by the Mamlatdar was to continue in force
until the village is surveyed and settled and not merely until an
assessment of revenue payable in respect of the land is determined
either under s. 52 of. the Code or Chapter VIII-A of the Code.
This view of ours is further strengthened by a comparison of
the language used in s. 19 of the Act 'and s. 52 of the Code.
Section 52 of the Code envisages assessment of amount to be paid
as land revenue "on all lands", while s. 19 of the Act refers to
survey and settlement of "a village" and not of lands. Obviously.
under s. 52 of the Code, there could be assessment of revenue on
lands without survey or settlement of a village and, when the
Legislature, in s. 19 of the Act, used the expression "village is
surveyed and settled". it clearly ruled out a mere assessment
under s. 52 of the Code which need not follow a survey or >ettkment of a village.
In our opinion. therefore, under s. 19 of the
Act, the assessment made by the Mamlatdar under that section
itself must continue in force until there is a survey and settlement
in accordance with Chapters VIII and VIIT-A of the Code.
In this connection, we may take notice of one more aspect.
Even under s. 52 of the Code and Rule 17 of the Rules made
thereunder, there is, in fact, no survey at all.
All that Rule I 7
requires the Collector to do is to classify land into three classes:
(I) dry crop, (2) rice and (3) irrigated.
These three classc'
are then to be divided into three sub-classes, good, medium and
inferior. Assessment is then to be made on each parcel of land
by comparison of. similar class and sub-class of land with land
of the same class and sub-class situated in the Bombay urea apart
from areas transferred to Bombay State at the time of Reorganisation of the States in 1956.
This procedure doos not invok~
any survev. Survey, as indiCated bv Chapter III-A of the Land
Revenue Rules framed under the Code, requires the settlement
ofticer to examine physical configuration, climate _and rain-fall.
. 300
SUPREME COURT REPORTS
( 1970}3 S.C.R .
markets, communications, standard of husbandry, population and
supply of labour, agricultural resources, the vanati!Jns in the area
of occupied and cultivated .lands during the period of previous
settlement, wages, prices, yield of the principal crop, ordinary
expenses of cultivating each crop, and rental values of lands used
for purposes of agriculture .. No such survey of any of these
factors was required to be done by the Collector when making the
assessment of land revenue payable under s. 52 of the COde read
with Rule 17.
In fact; the provisions of Rule 17 require very
limited action by the Collector in classifying lands and comparing
lands to be assessed with lands in untransferred area of the Bombay
State. Fixing of land revenue payable, on this principle, is also
clearly exercise of a sumi'nary power which appears to have heen
conferred on the Collector by ~- 52 as a temporary measure until
there could be a proper settlement of land revenue after survey
in accordance with Chapters VIII and VIII-A of the Code. If
such assessment made by the Collector by a more or less summary procedure were in<endccl to he given effect to by the Legislature in the Act, there W<L~ no need at all to create another
authority in the Mamlatdar to fix assessment by a slightly different
summary procedure. It seems to us tltat the Saurashtra Legislature, in passing the Act, for the temporary period until there
could be a regular survey and ~ettlement, created a :machinery
by granting power to the Mamlatdai to make a summary assessment. and that was clearly intended not to be superseded by another summary fixation of assessment by the Collector under s. 52
of the Code.
The High Court has held that, in substance and in effeet, the
Collector, in acting under s. 52 of the COde and Rule 17, did
make the assessment after survey and settlement.
Nowhere did
the High Court examine whether any of the steps which are taken
in a survey were required to be taken by the Collector at all. The
High Court seems to have assumed that the procedure laid dcmn
in Rule 17 amounted to survey and settlement.
Further, the
High Court lost sight of the fact that, under s. 52 of the Code
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and Rule 17, the assessment of land revenue payable was in · G
respect of lands, while s. 19 of the Act envisaged survey and settlement not of individual lands but of a village. We are, therefore.
unable to agree with the view of the High Court that what the
Collector did in 1959 in making the assessment under s. 52 of
the Code and Rule 17 amounted to· survey and settlement of
villages as envisaged in s. 19 of the Act.
There having been
no survey and settlement of the village, the assessment ma~e by
the Mamlatdar continued to be assessment for purposes of the
Act and the Oovemment was, therefore, not justified in varying
H
A
B
REHMANMIYA V. GUJARAT (Bhargava, I.)
:;o I
the payment of annuity under -s. 18 of the Act which should have·
been continued to be paid in accordance with that assessment.
The appeals are, consequently, allowed with costs. in both
Courts and the orders of the High Court are
set aside.
As
prayed by the appellants in their writ petitions, writs of mandamus
shall issue to the Government to pay cash annuity to the appellants on the basis of the assessments made by the Mamlatdar under
s. 19 of the Act and not in accordance with the assessments made·
by the Collector under s. 52 of the Code read with Rule 17 of
the Rules framed thereunder.
V.P,S.
Appeals al/011·ed_