Appeal No 1057 of 1965
Appeal by special leave from the judgment and order dated November 21 1963 of the Gujarat High Court in Special Civil Application No 560 of 1961
NS Bindra SK Dholakia and SP Nayar for the appellant
Somnath R Upadhya and Bhuvanesh Kumari for the respondent No 1 616 The Judgment of the Court was delivered by Hegde J
This is an appeal by special leave
Herein we have to determine the true scope of section 141 of the Bombay Merged Territories and Areas Jagir Abolition Bombay Act No XXXIX of 1954
That question arises thus Respondent No 1 was the Bhayyat of the Jagir of Ghantoil
That Jagir was situated in the Idar State a former Indian State
The area comprised in that State is a part of the State of Gujarat at present
The said Jagir was a proprietary Jagir and for the purpose of succession and inheritance it was governed by the rule of primogeniture
The eldest son succeeded to the Gaddi the other junior members of the family were granted maintenance known as Jiwarak out of the Jagir estate
The former Thakore of Ghantoil Shri Dalpatsinhji Kumansingh granted as Jiwarak to the father of the present respondent a half share in a village by means of a deed dated Feb 18 1916
In 1928 dispute arose between the Thakore and the Bhayyats in the matter of aforesaid Jiwarak
Hence the first respondent and his brother filed a suit in the Sadar Court of the then Idar State claiming Jiwarak
The Court of first  instance decreed the suit in favour of the first respondent and his brothers
The Thakore went in appeal against the said judgment
When the appeal was pending the dispute was compromised and a consent decree was passed on September 23 1940
Under the consent decree the following rights were given to the first respondent and his brothers as Jiwarak
1 Rights to recover assessment Vighoti of Survey Nos
382 387 396 398 399 542 543 544 545 and 546 assessed at Rs 175 
2 Right to own and possess Gharkhed Lands consisting of Survey Nos 219 220 225 227 228 and 229 assessed at Rs 748 free from payment of assessment and  3  Right to receive a cash allowance of Rs 23412annually from the Jagir
The Act came into force on August 1 1954 as a result of which all Jagirs in the merged territories of Bombay including the Jagir of Ghantoil were abolished
Thereafter respondent No 1 claimed compensation under section 141 of the Act
He applied to the Jagir Abolition Officer for fixing the compensation due to him in respect of his aforementioned rights
That officer rejected his claim but when the matter was taken up in appeal to the Gujarat Revenue Tribunal the Tribunal granted him compensation in respect of his rights to recover assessment of Rs 175annually but it rejected his claim for compensation under the remaining two heads
The first respondent then took up the matter to the Gujarat High Court under article 227 of the Constitu 617 tion in Special Civil Application No 560 of 1961
The High Court allowed that application
It held that the first respondent is entitled to compensation in accordance with the provisions of the Act both in respect of Gharkhed lands as well as in respect of his right to receive cash allowance of Rs 23412 annually
The Jagir Abolition Officer was directed to hold further inquiry for determining a compensation payable to the first respondent in respect of those rights
This appeal is directed against the said order of the High Court
The long title of the Act shows that it is an Act to abolish Jagirs in the merged territories and merged areas in the State of Bombay
Its preamble reads Whereas it is expedient in the public interest to abolish jagirs of various kinds in the merged  territories and merged areas in the State of Bombay and to provide for matters consequential and incidental thereto It is hereby enacted as follows    Section 2 defines the various expressions including Gharkhed land Jagir Jiwai Jagir used in the Act
Jagirs are abolished under section 3
That Section reads Notwithstanding anything contained in any usage grant sanad order agreement or any law for the time being in force on and from the appointed date i all jagirs shall be deemed to have been abolished ii save as expressly provided by or under the provisions of this Act the right of a jagirdar to recover rent or assessment of land or to levy or recover any kind of tax cess fee charge of any hak and the right of reversion or lapse if any vested in a jagirdar and all other rights of a jagirdar or of any person legally subsisting on the said date in  respect of a jagir village as incidents of jagir shall be deemed to have been extinguished Section 4 provides that all Jagir villages shall be liable to pay land revenue in accordance with the provisions of the Code and the rules relating to unalienated lands shall apply to these villages
In this case we are not concerned with the compensation payable to the Jagirdar
We are dealing with the case of a person coming under section 141 of the Act
That section prescribes the method of awarding compensation to persons other than Jagirdars who are aggrieved by the provisions of the Act as abolishing extinguishing or modifying any of their rights to or interest in property
The section reads thus 618 Section 14  1 
If any person other than a jagirdar is aggrieved by the provisions of this Act as abolishing extinguishing or modifying any of his rights to or interest in property and if compensation for such abolition extinguishment or modification has not been provided for in the provisions of this Act such person may apply to the Collector for compensation
 The real question for decision is whether the right to own and possess Gharkhed land and the right to receive cash allowance annually from the Jagir are rights to property or at any rate interest in property
Before a person can claim compensation under section 141 he has to establish 1 that he is not the Jagirdar of the concerned Jagir 2 he is aggrieved by the provisions of the Act as abolishing extinguishing or modifying any of his rights to or interest in property as a result of the abolition of the Jagir and 3  compensation for such abolishing extinguishment modification has not been provided in the provisions of this Act
It is admitted that the petitioner was not a Jagirdar
It is also admitted that he is aggrieved by the provisions of this Act
It was not said that for abolition of any of the privileges enjoyed by him any compensation had been provided  under the provisions of the Act
The only point in controversy is whether the claim put forward by him can be considered as right to or interest in property
We shall first take up the Gharkhed lands
Admittedly the first respondent was enjoying those lands without any liability to pay assessment
That was a right conferred on him under the compromise decree
No material was placed before us to show that the Jagirdar was competent in spite of the compromise decree to collect assessment from him in respect of those lands
This was not a case of suspension of land revenue
The first respondent s right was to enjoy the land free of the liability to pay the land revenue
That was the position on the date the Act came into force
So far as the Thakore was concerned the right to collect the assessment of those lands had been given as Jagir to the Jagirdar
We see no merit in the contention of Mr NS Bindra the learned Counsel for the appellant that the Sovereign had an inherent right to levy assessment and any agreement not to collect assessment has necessarily to be considered as a concession and not a right
That question is wholly irrelevant for our present purpose
In this case we are not called upon to consider the nature of the power of the Sovereign to levy assessment
The only question for our decision is that whether by abolishing the Jagir and by levying assessment on the Gharkhed lands any of the respondent s right to or interest in property were abolished extinguished or modified
We are considering the plaintiff respondent s 919 right to or interest in property as it stood before the Act and not after section 5 of the Act came into force
There is no denying the fact that right to enjoy a property without the liability to assessment is a more valuable right than the right to enjoy the same property with the liability to pay assessment
Before the Act the first respondent was enjoying Gharkhed land without the liability to pay assessment but after the Act came into force he enjoying those very
lands with the liability to pay assessment
Therefore there is hardly any doubt that his interest in that property stands modified
In this case it is not necessary to consider whether that interest can be considered as a right in the property
We are also in agreement with the High Court that the right to receive cash allowance of Rs 23412 annually from the Jagir is one of those rights that have got to be compensated under section 141
That liability was not the personal liability of the Jagirdar
The first respondent was entitled to get that amount from the Jagir
In other words it was a charge on the Jagir
Therefore it is an interest in property
We are unable to agree with Mr Bindra that the decision of this Court in Civil Appeals Nos
517 534 of 1965 The State of Gujarat etc
V Vakhatsinghji Sursinghji Vaghela1 to which two of the members of this Bench were parties is of any assistance to the appellant
Therein this Court was called upon to consider the scope of section 141 of the Bombay Taluqdari Abolition Act 1949
The language of that provision is substantially different from the language of section 14 1  of the Act
Further therein this Court held that the concerned Taluqdar was not entitled to enjoy the lands with the liability of paying only 60 of the assessed assessment though for some years only 60 of the assessed assessment was collected as a matter of concession
That was only a concession and not a right
Mr Bindra tried to extract one or two sentences from the decision of the Bombay High Court in Shapurji Jivanji V The Collector of Bombay2 and found an argument on the basis of those sentences to the effect that the right to collect assessment can never be given up
Far from supporting that contention the decision actually proceeded on the basis that the said right can be given up either by contract or on the basis of legislation
For the reasons mentioned above we see no merit in this appeal
It is accordingly dismissed with costs
VPS Appeal dismissed


Summary:
Under section 141 of the Bombay Merged Territories and Areas Jagir Abolition Act 1954 if any person other than a jagirdar is aggrieved by the abolishing extinguishing or modifying of his
interest in property by the provisions of the Act and if compensation for such abolition extinguishment or modification has not been provided for in the Act he could apply to the collector for compensation
The first respondent was enjoying as jiwarak maintenance three rights under a compromise decree namely i the right to recover the assessment in respect of certain lands in a jagir ii the right to own and possess Gharkhed lands in the jagir free from payment of assessment and iii the right to receive a cash allowance annually from the jagir when the jagir was abolished by the Act
On the question whether the respondent was entitled to claim compensation in respect of items ii and iii under section 141 of the Act HELD i The first respondent was entitled to enjoy and was enjoying the Gharkhed lands without the liability to pay assessment but after the Act came into force
he was to enjoy those very lands with the liability to pay assessment under section 4 of the Act 
Therefore his interest in the property was modified to his disadvantage and so he was entitled to claim compensation
619 A C ii The first respondent was entitled to get the cash allowance from the jagir that is it was a charge on the Jagir
Since it was also an interest in property which was extinguished on the abolition of the jagir the first respondent was entitled to claim compensation
619 C D State of Gujarat V Vakhatsinghji Sursinghji Vaghela  and Shapurji Jivanji V Collector of Bombay ILR  explained