PETITIONER:
SHRISHAILAGOUDA AND OTHERS ETC.
Vs.
RESPONDENT:
GURUSANGAPPA RAMASOMAPPA DESAI AND ANOTHER
DATE OF JUDGMENT29/07/1980
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
SHINGAL, P.N.
CITATION:
1980 AIR 1759 1981 SCR (1) 116
ACT:
Bombay Pargana and Kulkarni Watans (Abolition) Act,
1950, Section 4, scope of-Regrant of watan lands under
section 4 of the 1950 Act has no nexus to the rejection of
an application under section 10 Bombay Hereditary Offices
Act (Act III of 1874)-Grant was of the soil and not of the
royal share of the revenue.
HEADNOTE:
The respondent's ancestors continuously enjoyed the
watan property through the years since the 17th century when
it was granted and performed the duties of the office of the
watandar in spite of political changes in the country. After
the death of the then holder of the watan in 1851, an
enquiry into the rights of his son Bhimrao was started under
the Bombay Rent Free Estates Act, 1852 and later in 1863 a
settlement known as "Gordon Settlement" was made under
section 15 of the Bombay Hereditary Offices Act, (Act III of
1874), whereby a sanad was issued by the British Government
to the respondent's ancestor Bhimrao in 1872. The Sanad is
in the standard form of a Gordan Sanad and says that the
lands and cash allowances shall be continued in lineal
succession from generation to generation on condition that
the persons in enjoyment and their heirs shall be obedient
to the British Government and act faithfully and honestly
and shall go on paying to Government permanently every year
the amount mentioned in the Sanad.
In 1874 some of these watan lands were auction-sold in
execution of a money decree obtained by the appellants'
ancestors and as a result of a compromise decree obtained in
1912, the ancestors of the appellant, being decree holders,
were allowed to be in possession of these lands during the
life time of Bhimrao and his adopted son Ramasomappa.
Bhimrao died in 1918 and Ramasomappa in 1944. Section 5 of
the Bombay Hereditary Offices Act, 1874 forbids a watandar
to alienate the watan property beyond his lifetime to any
person not a watandar of the same watan. After Ramasomappa's
death therefore the appellants ceased to have any right to
continue in possession of the lands. Respondent Gurusangappa
is Ramasomappa's son.
Consequent on the coming into force of the Bombay
Pargana and Kulkarni Watans (Abolition) Act, 1950 abolishing
the watans, the watan lands were resumed and were made
subject to the payment of land revenue subject to the
provisions of section 4. Respondent Gurusangappa and also
the appellants applied to the prescribed authority for
regrant of the aforesaid watan lands under section 4 of the
Act. Earlier to this an application made in 1947 made on
behalf of respondent Gurusangappa under section 10 of the
Bombay Hereditary Offices Act, 1874 when he was a minor was
rejected.
The appellants lost before all authorities under the
Act who held that the respondent was the holder of the watan
and was as such entitled to an order of regrant. The Mysore
Revenue Appellant Tribunal, Belgaum however
117
set aside in revision the order of regrant in favour of the
respondent. The High Court allowed the writ petition of the
respondent challenging the order of the Revenue Tribunal and
restored the order of regrant in his favour.
Dismissing the appeal from the order of the High Court,
the Court,
^
HELD : (1) On the facts found by the authorities under
the 1950 Act except the Revenue Tribunal the respondent
would be clearly entitled to the Watan lands being regranted
to him under section 4 of the Act. All the authorities
including the Revenue Tribunal having held that the
appellants were strangers to the watan and, therefore, could
not ask for an order under section 4 in their favour and the
appellants not having challenged this finding it has become
final. [120E-F]
Collector of South Satara and another v. Laxman Madhay
Deshpande and others [1964] 2 SCR 48, followed.
(2) The Sanad granted to Bhimrao in 1872 was on the
basis that there was a watan and that Bhimrao was the holder
of the watan. The Sanad of 1872 granted only the right to
hold the watan lands free from full assessment. The Revenue
Tribunal was wrong in thinking that the Sanad granted the
royal share of the revenue. [120G-H]
Ramasomappa Bhimrao Desai v. The Secretary of State for
India in Council, 39 Bom. L. R. 851, explained and held
inapplicable.
(3) Section 10 of the Bombay Hereditary Offices Act,
1874 empowered the Collector to issue a certificate on the
basis of which the respondent could bring an action against
the appellants for recovery of possession of the lands. The
rejection of the application under section 10 of the Act is
not a matter relevant to the issue whether the respondent is
entitled to a regrant of the watan lands under section 4 of
the 1950 Act. [122A-B, C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 345 to
348 of 1969.
From the Judgment and Order dated 20-7-1967 of the
Mysore High Court in Writ Petition Nos. 1016 to 1018 and
1031/64.
R. B. Datar for the Appellants.
S. S. Javali, Mukul Mudgal and Vineer Kumar for
Respondent No. 1.
The Judgment of the Court was delivered by
GUPTA, J. These four appeals by certificate are
directed against an order dated July 20, 1967 of the High
Court of Mysore at Bangalore allowing four writ petitions
made by the first respondent before us (hereinafter called
the respondent). By the impugned order the High Court
reversed the decision of the Mysore Revenue Appellate
Tribunal and restored the order passed by the Assistant
Commissioner under section 4 of the Bombay Pargana and
Kulkarni Watans (Abolition) Act, 1950 (hereinafter referred
to as the 1950 Act). The
118
Assistant Commissioner’s order directing regrant of a watan
land to the respondent had been affirmed by the other
authorities under the 1950 Act before the Revenue Tribunal
set it aside. The four writ petitions relate to different
parcels of the said watan land.
The relevant facts which have been found or admitted
are as follows. The lands in question are paragana watan
lands. “Paragana watan” has been defined in section 2(e) of
the 150 Act to mean “a watan appertaining to the office of a
hereditary District (Paragana) Officer in respect of which a
commutation settlement has been effected……..” The watan
in question was originally acquired in the 17th century by
an ancestor of the respondent during the reign of the
Adilshahi Kings of Bijapur in recognition of the services
rendered by him. Except the Revenue Tribunal, the other
authorities under the 1950 Act, namely, the Assistant
Commissioner, the Deputy Commissioner and the Divisional
Commissioner found that the grant was of the soil and not of
the royal share of the revenue. The respondent’s ancestor
continued to enjoy the watan property through the years and
perform the duties of the office of watandar in spite of
political changes in the country. After the death of the
then holder of the Watan in 1851, Government challenged the
right of his son Bhimrao to the privileges of the Watan. An
inquiry into the rights of Bhimrao was started under the
Bombay Rent Free Estates Act, 1852 (known as Inam Act).
Ultimately, in 1863 a settlement was reached between the
British Government and Bhimrao. The terms of the settlement
was similar to those of the other settlements arrived at
between the British Government and various other watandars
under which the British Government relieved the watandars of
the liability to perform the services attached to their
offices in consideration of a fixed annual sum charged upon
the watan lands. This is commonly known as the Gordon
Settlement because it was entered into by a committee of
which Mr. Gordon as Collector was Chairman, acting on behalf
of the Government. The settlement was apparently made under
section 15 of the Bombay Hereditary Offices Act (Act III of
1974), commonly known as the Watan Act. The relevant part of
section 15 of this Act is as follows:
“The Collector may, with the consent of the holder
of a watan, given in writing, relieve him and his heirs
and successors in perpetuity of their liability to
perform service upon such conditions, whether
consistent with the provisions of this Act or not, as
may be agreed upon by the Collector and such holder.
Every settlement made or confirmed under this
section shall be binding upon both Government and the
holder of the watan and his heirs and successors.”
119
Following the settlement, a Sanad was issued by the British
Government to respondent’s ancestor Bhimrao in 1972. The
Sanad is in the standard form of a Gordon Sanad and says
that the lands and cash allowances shall be continued in
lineal succession from generation to generation on condition
that the persons in enjoyment and their heirs shall be
obedient to the British Government and act faithfully and
honestly and shall go on paying to Government permanently
every year the amount as mentioned in the Sanad.
The effect of commutation of service on watan property
has been considered by this Court in The Collector of South
Satara and another v. Laxman Mahadev Deshpande and
others.(1) After referring to the definitions of “watan
property” and “hereditary offices” in section 3 of the Watan
Act this Court observed:
“It is clear that the watan property, if any, the
hereditary office, and the rights and privileges
attached thereto, together constitute a watan and
hereditary office does not lose its character merely
because the service originally appertaining to the
office has ceased to be demanded. Computation of
service does not, therefore, in the absence of an
express agreement to that effect after the tenure of
the land held as watan. By agreement the State, for
consideration, may agree to relieve the holder of the
office and his successors of the duties to perform the
service for purposes of which the grant was made, but
the office and the grant continue, subject to the terms
of the settlement under section 15 of the Bombay
Hereditary Offices Act, 1874.”
It is necessary to state a few more facts touching the
watan lands in question. In 1874 some of these lands were
auction-sold in execution of a money decree obtained by the
ancestors of the appellants against the respondent’s
ancestors. Ultimately in 1912 a compromise decree was passed
concluding the dispute between the parties in terms of which
the decree holders were allowed to be in possession of these
lands during the life time of Bhimrao and his adopted son
Ramasomappa. The present respondent is Ramasomappa’s son.
Bhimrao died in 1918 and Ramasomappa in 1944. After
Ramasomappa’s death the appellants ceased to have any right
to continue in possession of the lands. Section 5 of the
Bombay Hereditary Offices Act, 1874 (Watan Act) also forbids
a watandar to alienate his watan property beyond his
lifetime to any person not a watandar of the same watan.
The 1950 Act abolished the paragana and Kulkarni watans
from the date the Act came into force. Under section 3(3) of
this Act
120
all watan land was resumed and was made subject to the
payment of land revenue subject to the provisions of section
4. Section 4(1) provides:
“A watan land resumed under the provisions of this
Act shall………….. be regranted to the holder of
the watan to which it appertained, on payment of the
occupancy price equal to twelve times of the amount of
full assessment of such land……………. and the
holder shall be deemed to be an occupant within the
meaning of the Code [Bombay Land Revenue Code, 1879] in
respect of such land and shall primarily be liable to
pay land revenue State Government………… “.
The appellants and the respondent both applied to the
prescribed authority for regrant of the aforesaid watan
lands to them under section 4 of the Act. The Assistant
Commissioner, Jamkhandi, held that the respondent was the
holder of the watan and as such was entitled to an order of
regrant. On appeal preferred by the appellants the Deputy
Commissioner, Bijapur, affirmed the order of the Assistant
Commissioner. The Divisional Commissioner, Belgaum,
dismissed the appeal against the order of the Deputy
Commissioner filed by the appellants. The Mysore Revenue
Appellate Tribunal. Belgaum Bench, allowed the revision
application made by the appellants setting aside the order
of regrant in favour of the respondent. The High Court of
Mysore at Bangalore allowed the writ petitions made by the
respondent challenging the order of the Revenue Tribunal and
restored the order of regrant in his favour.
On the facts found by the authorities under the 1950
Act except the Revenue Tribunal, the respondent would be
clearly entitled to the watan lands being regranted to him
under section 4 of the Act. All the authorities including
the Revenue Tribunal held that the appellants were strangers
to the watan and therefore could not ask for an order under
section 4 in their favour; the appellants not having
challenged this finding it has become final. The Revenue
Tribunal however was of the view that under the Sanad issued
in favour of the respondent’s ancestor what was granted was
only the royal share of the revenue, it was not a grant of
the soil, and that as such the lands in question could not
be regranted to the respondent under section 4. The facts
stated earlier make it clear that the Sanad was granted on
the basis that there was a watan and that the respondent’s
ancestor Bhimrao to whom the Sanad was granted was the
holder of the watan. The Sanad of 1872 granted only the
right to hold the watan lands free from full assessment. The
view taken by the Revenue Tribunal appears to be based on a
judgment
121
of the Bombay High Court, Ramasomappa Bhimrao Desai v. The
Secretary of State for India in Council.(1) disposing of an
appeal that arose from a suit instituted in 1929 by the
respondent’s father Ramasomappa against the Secretary of
State for India in-Council in 1929. According to the
Tribunal the Bombay High Court had held in that case that
the grant to the respondent’s ancestor did not include the
right to the soil. It may be necessary here to state a few
facts upon which Ramasomappa’s suit was instituted. Bhimrao
to whom the Sanad was given adopted Ramasomappa in 1909.
After Bhimrao’s death in 1918. Government refused to
recognise Ramasomappa’s adoption. He then applied to
Government for the grant of ex post facto sanction to his
adoption by Bhimrao and, alternatively, prayed that in case
the sanction was not given, then the watan might be resumed
by the levy of full assessment on the lands and he should
not be evicted therefrom. Both these requests were turned
down and the Government passed orders for resuming
possession of the lands. Ramasomappa then brought the suit
against the Secretary of State for a declaration that the
orders passed by Government for resumption of possession of
the watan lands were illegal. The trial court having
dismissed the suit Ramasomappa came up in appeal to the
Bombay High Court. The question whether the original grant
to the respondent’s ancestor was of the soil or it was only
a right to the royal share of the revenue did not arise for
consideration in Ramasomappa v. Secretary of State (supra).
The Bombay High Court allowed Ramasomappa’s appeal holding
that the Sanad of 1872 did not purport to be a grant of the
right to occupy the soil, it had only reference to and was a
grant of the right to hold the lands free from full
assessment, and that if any of the conditions of the grant,
namely the condition of remaining faithful to Government or
the condition of paying a fixed duty was broken, then
Government was only entitled to claim full assessment on the
lands but any right of occupation which the holder of the
watan possessed apart from the Sanad would remain untouched.
The Tribunal’s reading of the judgment in Ramasomappa’s case
does not therefore seem to be correct. The judgment under
appeal before us points out that the decision in Ramasomappa
v. Secretary of State (supra) has no bearing on the issue
involved in the instant case.
Counsel for the appellants also relied on the decision
in 39 Bombay Law Reporter 851 in support of the appeal but,
for the reasons stated above, we do not think Ramasomappa’s
case at all helps him. The only other ground urged was that
an application
122
made on behalf of the respondent in 1947 (when he was a
minor) under section 10 of the Bombay Hereditary Offices Act
(Act III of 1874) having been rejected, the respondent’s
right to a regrant of the watan lands was extinguished.
Section 10 empowered the Collector to issue a certificate on
the basis of which the respondent could bring an action
against the appellants for recovery of possession of the
lands. The point was argued before the Deputy Commissioner
in the present proceedings who held that the rejection of
the application did not take away the right of the watandar
to ask for a regrant of the watan lands under section 4 of
the 1950 Act. From the judgment of the High Court it does
not appear the point was argued there, and normally the
appellants should not be allowed to take the point in this
Court. In any case it seems to us clear that the rejection
of the application under section 10 of the Bombay Hereditary
Offices Act, 1874 is not a matter relevant to the issue
whether the respondent is entitled to a regrant of the watan
lands under section 4 of the 1950 Act.
The appeals are dismissed with costs; one hearing fee.
V.D.K. Appeals dismissed.
123