Appeal No 6 of 1959
Appeal by special leave from the judgment and 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 Chatterjee for the appellant
H N Sanyal Additional Solicitor General of India N P Nathwani K N Hathi and R H Dhebar for the respondents
October 3
The Judgment of the Court was delivered by WANCHOO J
This appeal by special leave raises questions relating to the constitutionality and interpretation of certain provisions of the Bombay Personal Inams Abolition Act No XLII of 1953 hereinafter called the Act
The brief facts necessary for present purposes are these
The appellant was 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 953 which forms part of the inam was originally in village Athwa but is now in the suburbs of the city of Surat
The appellant was paying Rs 7 as Salami and Rs 6 3 0 as quit rent the full assessment of the land being Rs 56 8 0
In November 1952 the City Survey Officer of Surat wanted to levy non agricultural assessment on this land under section 134 of the Bombay Land Revenue Code 1879 hereinafter called the 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 was informed by the Collector that he would not be assessed under section 134 of the Code but was liable to Don agricultural assessment with effect from August 1 1955 in view of proviso b to section 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 1 1955 as non agricultural under section 52 of the Code
The appellant then went up in appeal to the Bombay Revenue Tribunal which was dismissed
He filed a writ petition in the High Court challenging the order of the Revenue Tribunal and also challenging the constitutionality of the Act
The High Court rejected the application
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 was to be levied on the applicant from August 1 1955 was correct
The appellant then applied for a certificate 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 concerned we have considered it in Gangadharrao Narayanrao Majumdar vs 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 connection is that in view of article 294b of the Constitution and in view of the fact that the holder was given 1  954 a Sanad when his inam was recognized it was not open to the State of Bombay to enact a law which would in any way vary the terms of the Sanad
This argument based on the immutability of Sanads was rejected by the Federal Court in Thakur Jagannath Baksh Singh vs The United Provinces 1 and has also been rejected by this Court in Maharaj Umeg Singh and others vs The State of Bombay and others 2
We also reject it for reasons given in the two cases cited
The challenge therefore to 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 assessed under section 52 of the Code as non agricultural is not correct
We are of opinion that there is no force in this contention either
Under section 4 of the Act all personal inams have been extinguished and save as expressly provided by or under the Act all rights legally subsisting on the said date in respect of such personal inams are also extinguished
Therefore the appellant cannot claim protection from being assessed fully after the Act came into force
Section 5 makes it clear that all inam lands shall be liable to the payment of land revenue in accordance with the provisions of the Code and would thus be liable to full assessment as provided by the Code
The appellant however relied on section 7 of the Act and contended that section 7 created an exception to sections 4 and 5 with respect to lands of inamdars used for building or for other non agricultural purposes and therefore the appellant s inam land which was used entirely for non agricultural purposes namely building could not be assessed under section 5 of the Act
As we read section 7 we find no warrant for holding that it is an exception to sections 4 and 5
As already pointed out section 4 abolishes personal inams and the rights of inamdars with respect to such inams and section 5 makes all 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 inam lands in the State namely public 1 1946 FCR III
2  955 roads lanes and paths all unbuilt village site lands all waste lands and all uncultivated lands and so on but an exception has been made so far as vesting is concerned with respect to lands used for building or other non agricultural purposes by the inamdar
The C appellant relies on this exception and it is urged on his behalf that this exception takes out the land so excepted from the provisions of sections 4 and 5
This reading of section 7 is in our opinion incorrect
That section vests certain parts of inam lands in the Government and but for the exception even those inam lands which were used for building and non agricultural purpose would have vested in the Government
The exception made in section 7 only saves such inam lands from vesting in the Government and no more
The result of the exception is that such inam lands do not vest in the Government and remain what they were before and are thus subject to the provisions of sections 4 and 5 of the Act
The appellant therefore cannot claim because of the exception contained in section 7 that the lands excepted from vesting are not subject to sa 4 and 5 of the Act
The argument therefore based on section 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 section 52 read with as
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 any 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
Reading the two sections together it is obvious that the assessment depends upon the use to which the land is put and is to be made 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 agricultural purposes namely for the purpose of building therefore if the land is to be assessed as it must now be assessed in view of section 5 of the Act to full assess 956 ment it can only be assessed as non agricultural
For the purpose of such assessment it is immaterial when the non agricultural use of the land started
It was in a special category being a personal inam land and was upto the time the Act came into force governed by the law relating to personal inams
The personal inams and all rights thereunder were abolished by the Act and the land is now to be assessed for the first time to full assessment under section 5 of the Act read with the provisions of the Code it can only be assessed as non agricultural land for that is the use to which it is being put now when the assessment is to be made
Section 48 makes it clear that the assessing officer when assessing the land should look to the use to which it is being put at the time of the assessment and assess it according to such use
As the assessment is to be made after the 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 at the time of assessment
Lastly it is urged that section 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
VIII A of the Code and section 52 only applies when no assessment has been fixed under Ch
VIII A Reference was also made to section 117 R which appears in Ch
VIII A
That Chapter was introduced in the Code in 1939 and deals with assessment and settlement of land revenue on agricultural lands
Section 117 R is a deeming provision and lays down that all settlements of land
revenue heretobefore made and introduced and in force before the commencement of the Bombay Land Revenue Code Amendment Act 1939 by which this Chapter was introduced in the Code shall be deemed to have been made and introduced in accordance with the provisions of this Chapter and shall notwithstanding anything contained in section 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 957 provision the settlement on which this land was held as inam land must be deemed to have been made under this Chapter and therefore it cannot be said that no assessment has been fixed under the provisions of Ch
VIII A in this case
We are of opinion that there is no force in this argument
Section 117 R of the Code is a deeming provision
Section 52 on the other hand when it says that that section will not apply where 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 section 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 of 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 section 52 would apply and the Collector 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 dismissed


Summary:
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 1912 and 1935 issued by the said Rulers
When Gwalior integrated with Indore and Malwa in 1948 to form a union section 4 Of 122 958 Act No 1 of 1948 provided for the continuance of all laws ordinances rules and regulations having the force of law in the covenanting states
After the formation of the State of Madhya Bharat under the Constitution the Government of that State which remained liable to pay the said pension by an executive order terminated the right
The appellant moved the High Court against the said order under article 226 of the Constitution
and his case was that the right to receive the said pension having been statutorily recognised by the State of Gwalior could not be extinguished by an executive order
The Full Bench of the High Court held against him
The question was whether the Kalambandis of 1912 and 1935 on which the appellant rested his case were existing law within the meaning of article 372 Of the Constitution
Held that the question must be answered in the affirmative No distinction could be made between an executive order and a legislative command made by an absolute monarch such as the Rulers of the Indian State of Gwalior were since they have the same force of law passed in whichever capacity they may be and govern the rights of the subjects
Ameer un Nissa Begum vs Mahboob Begum AIR 955 SC 352 and Director of Endowments Government of Hyderabad vs Akram Ali AIR 1956 SC 6o referred to
Consequently even supposing that the Kalambandis did not amount to a quanun or law technically so called they would nevertheless be orders or regulations having the force of law in the State at the material time and would be existing law within the meaning of article 372 Of the Constitution
Edward Mills Co Ltd Beawar vs State of Ajmer   referred to
The contents of the two Kalambandis and the character of their provisions clearly show that they could not be mere administrative orders and if not statutes must in any event be rules and regulations having the force of law