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Gangadharrao Narayanrao Muzumdar and ors. Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectConstitution;Property
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 393, 394 to 403, 405 to 413, 426, 427, 428, 451, 452, 498, 534 to 537, 608
Judge
Reported inAIR1955Bom28; (1954)56BOMLR1062; ILR1955Bom127
ActsConstitution of India - Articles 31, 31(2), 31(4), 31-A, 39, 245, 368 and 379; Bombay Personal Inams Abolition Act, 1953 - Sections 2, 17 and 17(5); Bombay Personal Inams Abolition Act, 1952; Land Revenue Code - Sections 3(5) and 6; Pensions Act, 1871; Bihar Land Reforms Act, 1950
AppellantGangadharrao Narayanrao Muzumdar and ors.
RespondentState of Bombay
Appellant AdvocateR.A. Jahagirdar, ;V.M. Limaye and ;V.N. Lokur, Advs.
Respondent AdvocateM.P. Amin, Adv. General, ;G.N. Joshi, Adv. and Little and Co.
Excerpt:
bombay personal inamsl abolition act (bom. xlii of 1953), sections 2(1)(c)(d)(e), 4, 5, 6, 7, 10, 17? - constitution of india, articles 31(2), 31 a, 379, 368, seventh schedule; list i, entry 33, list ii, entry 36, list iii, entry 43--bombay land revenue code (bom. v of 1879), section 3(5)--constitution (first amendment) act, 1951--whether bom. act xlii of 1953 constitutional--what constitutes 'estate' within bom. l. r. code--whether under article 31a states can extinguish or acquire interest in land--person affected by legislation acquiring property whether can challenge it on ground that acquisition not for public purpose--state legislature whether competent to enact act for acquisition of property without providing in it for compensation--meaning of words, ''subject to the provisions of.....chagla, c.j.1. these are several petitions challenging the constitutionality of the bombay personal inams abolition act, 1952, being act 42 of 1953. the 30 petitioners are inamdars of various inams and the exemption from land revenue in their case is below rs. 5,000. in petition no. 404 of 1954 the exemption from land revenue in his case exceeds rs. 5,000. then there is one inferior holder who holds from the inamdar; that is petition no. 399; and in seven petitions nos. 632, 846, 847, 921, 023 and 933 the petitioners are alienees from inamdars and they have purchased the right to receive land revenue from inferior holders. there is one petition no. 1166 where the inamdar is the inamdar of wanta lands.2. turning first to the act which is challenged, it applies to inamdars, inam villages.....
Judgment:

Chagla, C.J.

1. These are several petitions challenging the constitutionality of the Bombay Personal inams Abolition Act, 1952, being Act 42 of 1953. The 30 petitioners are inamdars of various inams and the exemption from land revenue in their case is below Rs. 5,000. In petition No. 404 of 1954 the exemption from land revenue in his case exceeds Rs. 5,000. Then there is one inferior holder who holds from the inamdar; that is petition No. 399; and in seven petitions NOS. 632, 846, 847, 921, 023 and 933 the petitioners are alienees from Inamdars and they have purchased the right to receive land revenue from inferior holders. There is one petition No. 1166 where the inamdar is the inamdar of wanta lands.

2. Turning first to the Act which is challenged, it applies to inamdars, inam villages and personal inams, and we have the definition of an 'inamdar' in Section 2(1)(c) which defines an inamdar as a holder of a personal inam and includes any person lawfully holding under or through him. Inam village and inam land is defined as a village or a portion of a village or land, as the case may be, held by a person under a personal Inam; and 'personal inam' is defined as a grant of a village, portion of a village, land or total or partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under Section 53 of the Code, and also a grant of money or land revenue including anything payable as a cash allowance on the part of the state Government in respect of any right, privilege, perquisite or office and entered as class I, II, III, IV or V in the records kept under the rules made under the Pensions Act, 1871.

Section 4 extinguishes all personal inams, and the proviso to that section lays down that if the amount of exemption from payment of land revenue exceeds Rs. 5,000, the exemption from payment of land revenue shall be extinguished from 1-8-1953, and in all other cases from 1-8-1955. Section 5 provides that all inam villages or Inam lands shall be liable to the payment of land revenue in accordance with the provisions of the Land Revenue Code, and Sub-section (2) provides that an Inamdar in respect of the inam land in his actual possession or in possession of a person holding from him other than' an inferior holder, referred to in Clause (b) below, or an inferior holder holding Inam land on payment of annual assessment only, shall primarily be liable to the State Govt. for the payment of land revenue due in respect of such land held by him and shall be entitled to all the rights and shall be liable to all obligations in respect of such land as an occupant under the Code or the rules made thereunder or any other law for the time being in force.

The effect of this provision briefly is that where an inamdar or a person holding from him other than an inferior holder is in possession of the land, the inamdar becomes the occupant and becomes liable to pay land revenue direct to the State, Where there is an inferior holder in possession, then he becomes an occupant and he becomes liable to pay the amount of land revenue direct to the State. Therefore, the position as between the Inamdar and the inferior holder is that the inferior holder does not pay the land revenue to the superior holder but pays it to the State and his possession is protected and made permanent by his being looked upon as an occupant within the meaning of the Land Revenue Code. Section 6 provides for compensation for abolition of cash allowance.

Section 1 deals with public roads situated in inam villages, and the section provides that these public roads, etc. shall vest in Government. What is made to vest in Government is also waste lands and all uncultivated lands; and the explanation to that section provides: '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 date.' Section 10 provides compensation to be paid to inamdars in respect of any right or interest in any property referred to in Section 7 and it lays down the mode of assessing the compensation.

Section 17 gives the right to any person aggrieved by the provisions of the 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 the Act, to apply to the Collector for compensation. There is an important sub-section in this section which is Sub-section (5) which provides:

'Nothing in this section shall entitle any person to compensation on the ground that any Inam village or inam land which was wholly or partially exempt from the payment of land revenue has been under the provisions of this Act made subject to the payment of full assessment in accordance with the provisions of the Code.'

3. Now, there are three important aspects of this legislation on which emphasis has been placed by Mr. Jahagirdar. In the first place Mr. Jahagirdar says that no compensation whatever has been provided to the inamdar who loses his right to exemption from payment of land revenue. He-points out that although compensation is provided: for loss of cash allowance, the Legislature in its wisdom has not thought fit to give any compen- sation to an inamdar who loses his valuable right of being exempted from payment of land revenue. The second aspect of the legislation to which attention is drawn is the position of the inamdar 'qua' the inferior holder. Mr. Jahagirdar says that today the inamdar has reversionary rights in the land which is being held by the Inferior holder, and apart from the inamdar losing his right to receive land revenue from the inferior holder, he even loses his proprietary right in that land. The third aspect of the legislation to which reference is made is that with regard to uncultivated lands the only compensation that is provided is under Section 10 which is not to exceed three times the assessment of the land.

Having regard to these aspects of the legislation. Mr. Jahagirdar's submission is that this legislation is clearly confiscatory in character. Mr. Jahagirdar says that either it confiscates without giving any compensation at all, as in the case of exemption from land revenue, or, where it does pay compensation, as in the case of uncultivated lands, the compensation is purely illusory.

4. Now, the attack on the legislation is based substantially on three grounds. In the first place it is urged that no public purpose is or can be served by a legislation of tills character; it is then urged that no compensation is provided as required by the law; and finally it is urged that the State Legislature did not have the competence under the Constitution to put a legislation of this character upon the statute book.

5. Turning- to the provisions of the Constitution, what is relied upon is Article 31(2). That article deals with the power of the State to take possession or acquire property, and two limitations are placed upon the power of the State under that article, and the two limitations are that the acquisition or taking possession of must be for a public purpose and that the State must either pay compensation or the law providing for acquisition must either fix the amount of compensation or specify the principles on which and the manner in which compensation is to be determined and given.

The Constitution was subsequently amended and a very important article was incorporated, which is Article 31A, and that provides: 'Nothwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or oE any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that It is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part.' In order that this article should apply, the law passed by the State must be reserved for the consideration of the President and must receive his assent. This. Act conforming to this provision was reserved for the consideration of the President and the President has given his assent. So the condition having been satisfied, the question is whether Article 31A applies to the law under consideration.

It will be noticed that Article 31A has been enacted in the widest possible language. It gives to the State the power to acquire any estate or any right in an estate and it also gives the State the power to extinguish or modify any rights in an estate, and if the State does BO, then it is not open to the person affected by the legislation to challenge it on the ground that any of his fundamental rights guaranteed under Part III have been abridged or taken away. 'Estate' has been defined in Clause (2) of Article 31A and the definition of 'estate' is that in relation to any local area it has to have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant.

It was contended both by Mr. Jahagirdar and Mr. Patel -- and we shall presently notice that argument -- that the lands which are being dealt with are not inams and therefore Article 31A has no application. But it will be immediately noticed that inam is only one of the estates referred to in Clause (2) of Article 31A. The estate contemplated by Article 31A is a tenure or a right in property, which tenure or right is defined as estate under any local law dealing with land tenures; and when we turn to the Land Revenue Code _ 'estate' is defined in Section 3(5) as meaning any interest in lands and aggregate of such interests vested in a person or aggregate of persons capable of holding the same.

Therefore, it is clear that under Article 31A power is given to the State to extinguish or acquire any interest in any land and it would be futile to contend that the petitioners before us have no interest In the lands belonging to them which they have come to this Court to protect. The Land' Revenue Code does not specify the nature or the character or kind of interest in land. If there is any interest in land, whatever its nature, It would constitute 'estate' within the meaning of the Bombay Land Revenue Code, and the whole object and intention of amending the Constitution was to provide for; if necessary we might use that expression, expropriation of interest in land by the State. Therefore in our opinion it is clear that Article 31A applies, and if that article applies, then the legislation which falls under that article is not subject to a challenge on the ground that 'it takes away or abridges the fundamental rights of those who are affected by that legislation.

6. In tin's connection, Mr. Jahagirdar has argued that even if Article 31A applies, it is open to the Court even so to consider whether the acquisition-is for a public purpose. The argument is that public purpose does not form part of the provisions-contained in Article 31(2) and what is saved by Article 31A is only the provisions of Article 31(2). It is urged that public purpose is essential in the-very exercise of the power of the State to acquire-property belonging to a citizen. It is also urged that it is not expressly made a part of the fundamental right under Article 31(2) because it is the-very essence of what the American jurists considered to be the function of the State by virtue of eminent domain to take possession of property belonging to a private citizen. It is contended-that the State cannot exercise that function unless the exercise is for public purpose.

7. Strong reliance is placed on the opinions-expressed by the learned Judges of the Supremo-Court in -- 'State of Bihar v. Kameshwar Singh', : [1952]1SCR889 . In that case what was challenged was the Bihar Land Reforms Act (30 of 1950) and a majority of the Supreme Court Bench consisting of Mr. Justice Mahajan, Mr. Justice-Mukherjea and Mr. Justice Chandrasekhara Aiyar held that Section 4(b) and Section 23(f) were 'ultra vires' of the Constitution. Section 4(b) gave power to-the State to take away from the landlords arrears of rent, and Section 23 (f) provided a mode of computation of assessment to be paid to the landlords. The view of Mr. Justice Mahajan in which Mr. Justice Chandrasekhara Aiyar concurred was that as far as Section 4(b) was concerned no public purpose was served by the State taking away the arrears of rent, and with regard to Section 23 (0 the view of those learned Judges was that that section constituted a fraud upon the Constitution and in enacting that section the Legislature really had not exercised its legislative function. Mr. Justice Mukherjea concurred in holding that both the sections were void, but with regard to Section 4(b) his view was that it was bad on the same ground as Section 23 (f), viz., that in enacting that section also the Legislature had in reality not exercised its legislative function.

Mr. Justice Mahajan says (p. 272):

'........The existence of a 'public purpose' is undoubtedly an implied condition of the exercise of compulsory powers of acquisition by the State, but the language of Article 31(2) does not expressly make it a condition precedent to acquisition.'

Further on he says '(p. 273):

'Public purpose is an essential ingredient in the very definition of the expression 'eminent domain' as given by Nichols and other constitutional writers, even though obligayon to pay compensation is not a content of the definitionbut has been added to it by Judicial interpreta-tion. The exercise of the power to acquire compulsorily is conditional on the existence of a public purpose and that being so, this condition is not an express provision of Article 31(2) but exists 'aliunde' in the content of the power itself and that in fact is the assumption upon which this clause of the article proceeds.'

Now before the Supreme Court what was urged on behalf of the State was that the legislation was saved by Article 31(4). The Bill which ultimately resulted in the Act was pending at the commencement of the Constitution in the Legislature of the State and it had received the assent of the President after it had been passed, and what was urged was that the law so assented to cannot be called in question in any Court on the ground that it contravened the provisions of Clause (2), and it is in this connection that Mr. Justice Mahajan took the view that public purpose was not a provision of Clause (2) and therefore notwithstanding the fact that the legislation fell under Clause (4) it was open to the challenge that the acquisition was not for public purpose.

Mr. Justice Chandrasekhara Aiyar agreed with the view of Mr. Justice Mahajan. At p. 295, the learned Judge says:

'It is assumed, rightly, that the existence of a public purpose is part and parcel of the law and is inherent in it. The existence of a public purpose is not a provision or condition imposed by Article 31(2) as a limitation on the exercise of the power of acquisition. The condition prescribed is only as regards compensation.'

When we turn to the judgment of Mr. Justice Mukherjea, at p. 279, he sets out the view taken by Mr. Justice Mahajan, but his ultimate judgment is based on the assumption that (p. 219):

'........Clause (4) of Article 31 relates to everything that is provided for in Clause (2) either in express terms or even Impliedly and consequently the /question of the existence of a public purpose does not come within the purview of our enquiry in the present case.'

It is difficult to accept Mr. Jahagirdar's contention that impliedly Mr. Justice Mukherjea took the same view as Mr. Justice Mahajan, because in an earlier judgment Mr. Justice Mukherjea had clearly expounded the proper interpretation of Article 31: See -- 'Charanjit Lal v. Union of India', : [1950]1SCR869 . At p. 54 Mr. Justice Mukherjea says this:

'..... .Article 31(2) of the Constitution prescribesa twofold limit within which such superior right of the State should be exercised. One limitation Imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose. The other condition is that no property can be taken, unless the law which authorises such appropriation contains a provision for payment of compensation in the manner laid down in the clause.'

Nothing could be clearer than the view of this learned Judge that the two limitations upon the power of the State with regard to acquisition of property are to be found in Article 31(2) itself, and the limitation of public purpose is not a limitation which is outside the article but is within the ambit of that article itself. Both the learned Chief Justice Sastri and Mr. Justice Das took a view contrary to the view taken by Mr. Justice Mahajan as to the justiciability of the public purpose when the case fell under Article 31(4). At p. 263 the learned Chief Justice says:

'..... .It is thus clear that Section 299(2) was intendedto secure fulfilment of 'two' conditions subject to which alone legislation authorising expropriation of private property should be lawful, and it seems reasonable to conclude that Article 31(2) was also intended to Impose the same two, conditions on legislation expropriating private property.'

And at the end of this paragraph he says:

'......Article 31(2) must therefore, be taken toprovide for both the limitations in express terms.'

Mr. Justice Das at p. 288 says:

'.......I am, therefore, clearly of opinion thatthe existence of a public purpose as a prerequisite to the exercise of the power of compulsory acquisition is an essential and integral part of the 'provisions' of Clause (2).'

And the learned Judge, one may say so with respect, advances strong and valid arguments as to why that view was the only possible view. It Is, therefore, open to us to accept either the view given expression to by the learned Chief Justice and Mr. Justice Das or the view taken by Mr. Justice Mahajan and Mr. Justice Chandrasekhara Aiyar. With respect, we are inclined to accept the view taken by the learned Chief Justice and Mr. Justice Das, supported as it is by the view of Mr. Justice Mukherjea in the earlier case.

8. Therefore, it is a right conferred by a provision of Part III embodied In Article 31(2) that the property of a person cannot be acquired by the State unless it is for a public purpose, and if that is a right guaranteed by Part III, then it is open to the Legislature, if the legislation falls under Article 31-A, to legislate with regard to acquisition of property and it is not open to the person affected by that legislation to challenge it on the ground that the acquisition is not for public purpose. In this view of the case it is unnecessary to consider whether in fact the legislation is for public purpose or not. But we might just state the arguments advanced by Mr. Jahagirdar on this point.

What Mr. Jahagirdar says is that in depriving the inamdars of the exemption from land revenue all that the State has done is to add to the State revenue and he points out that it is clearly established both here and in America that the mere addition to State revenue cannot operate as a public purpose. It is not open to the State to take away the property of any person merely in order to contribute that property to the coffers of the State. As against this the Advocate General has contended that the object of this legislation is to bring about an equality before the'law In respect of persons who held or possessed land and the object of the State was not to permit certain persons as occupants of the land not to contribute to the land revenue while others were compelled to do so.

It may also be pointed out that one of the directives in the Constitution which is contained in Article 39 is that the operation of the economic system should not result in the concentration of wealth and means of production to the common detriment. If it is not open to the petitioners to challenge this legislation on the ground that it does not subserve public interest, it is even less open to them, if it falls under Article 31-A, to challenge that the legislation does not provide for compensation. Mr. Jahagirdar does not dispute the proposition that if we take the view that the legislation is protected by Article 31-A it is not open to him to contend that no compensation or no proper compensation is provided under that Act.

It is not disputed and it cannot be disputed that as far as the right of inamdars to be exempted from payment of land revenue is concerned it has been taken away without any compensation whatsoever, and, as already pointed out, with regard to uncultivable land the only compensation given is a nominal compensation of three times the assessment. But what is urged with even greater force by Mr. Jahagirdar is that in the case of alienees from inamidars the position is infinitely worse. He appears on behalf of six alienees who have purchased inam lands from the inamdars and in all these cases there are inferior holders and these alienees have paid substantial amounts for the purchase of the lands. .

In effect and in substance what these alienees have purchased is the right to receive land revenue from the inferior holders. They would not be entitled to any other right because the inferior holders are in possession. In their case, as a result of the present legislation, their rights have been completely extinguished without any compensation whatever. It is doubtful whether their case would fall under Section 17 because at one time it was suggested that if they are aggrieved they could apply to the Collector for compensation with regard to their rights.

But It seems that Sub-section (5) of Section 17 would come in their way, because the only right in respect of which they could claim compensation is the right of exemption from payment of land revenue, and Sub-section (5) expressly provides:

'Nothing in this section shall entitle any person to compensation on the ground that any Inam village or inam land which was wholly or partially exempt from the payment of land revenue has been under the provisions of this Act made subject to the payment of full assessment in accordance with the provisions of the Code.'

The Advocate General is right when he says that it is a question of policy, and when a country is going through a revolution, It may happen that even innocent people might suffer. It is for the State to consider whether some relief cannot be given to these alienees who, we take it, purchased the lands bona fide in the hope and expectation that their investment would give them the return of exemption from payment of land revenue, and the result of the legislation is that their Investment is completely lost and they are without the capital which they have sunk and even without the Interest which they expected to earn on that capital.

9. With regard to the right to property of inamdars 'qua' their inferior holders, that again, it is conceded, is extinguished without any compensation. But the Advocate General points out that the only right that an inamdar has when the inferior holder is in possession is to get land revenue from him and therefore no higher right is extinguished in this case than in the case where the inamdar himself is in possession,

That is not strictly correct, because not only has an inamdar the right to receive land revenue from the inferior holder, but he also has certain reversionary rights in the property. He is the owner of the property, he is the inamdar, and the inferior holder holds under him or through him. The Advocate General says that it may be that with regard to these reversionary rights the inamdar-may be able to get compensation under Section 17 because these rights have not been expressly provided for under the Act.

10. The next contention of Mr. Jahagirdar is that even assuming the legislation falls under Article 31-A, we have to be satisfied that the Legislature was competent to put on the statute book this legislation. Now, we have pointed out before that a distinction must always be borne in mind between the competence of a Legislature and the violation or contravention of fundamental rights. If legislation is not competent, no further question arises. If legislation is competent, then the Court has got to consider whether it offends any of the provisions of the Constitution, particularly Part III of the Constitution. Therefore, if in this case the legislation itself was incompetent, no question of considering Article 31 or Article 31-A would arise.

Mr. Jahagirdar's contention is that a State Legislature is not competent to pass a confiscatory legislation. He says that the Constitution has only empowered the Legislature to pass laws for acquisition where compensation is provided. In order to appreciate this argument we must turn to the three Schedules annexed to the Constitution. List I in the Seventh Schedule is the Union List and entry 33 deals with acquisition or requisitioning of property for the purposes of the Union. List II, which is the State List, contains entry 38 which provides for acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III.

Then there is the Concurrent List, List III, and the entry in that list is entry 42 which deals with principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given. The argument advanced before us is that entry 36 expressly provides that that entry is subject to the provisions of entry 42 of List III and therefore in determining the competency of the State Legislature to legislate under List II we must import into the subject matter of entry 36 what is contained in entry 42 of List III, and as entry 42 deals with principles of compensation entry 36 also places this limitation upon the competence of the Legislature to legislate with regard to acquisition or requisitioning of property that the Legislature must provide In the legislation compensation or principles of compensation.

Now, we had occasion to consider this argument in -- 'State of Bombay v. Heman Santial Alreja', : AIR1952Bom16 , we took the view that the expression 'subject to the provisions of entry- 42 of List III' was not intended to import any limitation with regard to public purpose, and we also held that the only limitation placed upon the State Legislature was that it could not legislate with regard to acquisition or requisitioning of property for purposes which are purposes of the Union and that the other limitation was that the Union Parliament may legislate with regard to compensation and the form and the manner In which such compensation was to be given, notwithstanding the fact that laws with regard to acquisition or requisitioning for the purposes other than the purposes of the Union may be enacted by the State Legislature.

This view has also found favour with the learned Chief Justice of the Supreme Court in -- 'State of Bihar v. Kanjeshwar Singh (A)'. At p. 264 the learned Chief Justice dealt with the argument with regard to the expression 'subject to the provisions of entry 42 in List III,' and this is what he says:

'......It was said that the words 'subject to the provisions of entry 42 in List III' must be taken to mean that the law-making power under entry 36 could only be exercised subject to the two conditions as to public purpose and payment of compensation, both of which are referred to in entry 43. Those words, in my opinion, mean no more than that any law made under entry 36. by a State Legislature can be displaced or overridden by the Union Legislature making a law under entry 42 of List III.'

We are, with respect, in agreement with the view taken by the learned Chief Justice, and therefore in our opinion the Legislature was competent to enact the legislation with regard to acquisition of property even though that legislation did not provide for compensation.

11. The third challenge to the constitutionality of the Act which has been only mentioned by Mr. Jahagirdar is that the amendment to the Constitution embodied in Article 31-A was enacted by the provisional Parliament constituted under Article 378 and that the Constitution was not amended as provided by Article 368. Mr. Jahagirdar's contention is that either the amendment is bad or such an amendment could only endure till the proper Parliament was elected under the Constitution, and once such Parliament was elected, it was for that Parliament to confirm the amendment enacted by the provisional Parliament. This very argument was advanced before the Patna High Court in -- 'State of Bihar v. Jhirki Mining Corporation', AIR 1953 Pat 388 and the Patna High Court rejected that contention. With respect, we are in agreement with the view taken by the Patna High Court.

12. It has also been urged by Mr. Jahagirdar that the lands held by the petitioners do not constitute inams and they are not inam lands. It is clear from the petition that this contention is not put forward for the purpose of urging that the Act does not apply to the petitioners. It is put forward for the purpose of urging that the interest in land of the petitioners does not constitute an estate within the meaning of Article 31A. We have already pointed out that the expression 'estate' is used in the widest significance in Article 31-A, and whether the Interest of the petitioners is inam or any other Interest, it would; still be covered by Article 31-A.

But as it has been sought to be argued by Mr. Jahagirdar that the petitioners are not inamdars and do not satisfy the definition of 'inam' and 'inamdar' contained in the Act, it would only be fair to him Just to notice the argument advanced by him. What is urged by him is that the petitioners received grants of these lands either under the Peshwas or under the Muslim rulers of the State, but, says he, these grants came to an end' in 1863 when there was a summary settlement.

The history of the summary settlement is this. The British Government appointed what are known as Inam Commissioners to investigate into the titles of various people who claimed to be Inamdars and to be exempt from payment of land revenue. The task of the Commissioners was extremely laborious and only a few cases were decided. Then the Legislature passed two Acts, Nos. 2 and 7 of 1863, and the effect of these Acts was that inquiry by the Government into the titles of the inamdars was waived and the inamdars agreed to pay a certain nazrana and a certain portion of the land revenue.

The Government also agreed to treat the land of the inamdars as private property which was heritable and alienable and conferred upon the land practically all the indicia of ownership. The argument based by Mr. Jahagirdar is that the result of the summary settlement was that the petitioners held the land under a contract with Government and the rights of the petitioners must be determined from the terms of the contract and not from the terms in any Act.

In our opinion the argument is not tenable because what the summary settlement did was to recognise the title of the inamdars. The title of the inamdars existed prior to the summary settlement and although certain new terms may have been added as to the manner and mode in which land should be held, it would be fallacious to suggest that the title which the petitioners had was extinguished and a new title arose by reason of a contract between the petitioners and the Government. Even today the title of the petitioners is not the contract arrived at with Government in 1863.

The title of the petitioners can and must be traced back to the original grant which they received and the Bombay Act when it refers to an inamdar refers to the original title under which the person held the land. What Mr. Jabagirdar wants us to do is to wipe out completely the history previous to 1863 and to stop tracing his title beyond 1863. If the petitioners had no title at all prior to 1863, then no question of any contract with Government would have arisen. It is precisely in order to avoid a laborious inquiry, that Government recognised the title of the petitioners and certain higher rights were given to them under the summary settlement.

13. Mr. Patel, who appears in petition No. 1168 for the petitioner who owns what are known as vanta lands, has taken up the same contention, and he urges that as far as he is concerned his position is very different from the position of the other petitioners. Now, vanta tenure is a type of tenure which is prevalent and understood in the Bombay State and mainly in Gujarat, and this tenure would as much satisfy the definition of 'estate' in Article 31-A .as the tenure on which lands are held by the other petitioners. Therefore, as far as Article 31-A is concerned, Mr. Patel has no answer to the applicability of that article.

But he also urges, although he too has not taken up this contention in the petition, that the Bombay Act cannot apply to wanta lands because these lands do not constitute inam lands. It is pointed out that the history of this tenure has been considered by this Court in -- 'Narharsingji Ishwarsingji v. Secretary of State', : AIR1941Bom161 , and Mr. Justice Wadia and Mr. Justice Divatia have given us a historical background to the creation of this particular tenure in Gujarat. It seems that the' owners originally were petty chiefs who owned no allegiance to the Rulers and who had acquired the land by force of arms, and when stability was restored to the State they kept a part of this land for themselves and handed over the rest to the Rulers.

It is, therefore, urged that in the case of the petitioner owning vanta lands it could not be said that at any time there was a grant of land which would constitute him an inamdar, and according to Mr. Patel the basic assumption underlying the Bombay Act is that at some time there must be a grant of land by the Ruler which would constitute him an inamdar. He says that as far as the petitioner is concerned there was ho alienation either of land or of revenue and his right and title to the land arises from the strong arm of his ancestor or ancestors. Mr. Justice Divatia himself has pointed out in the judgment at p. 163 and he was dealing with the case of the Thakors of Amod who owned land both of talukdari tenure and vanta tenure-

'It is clear that whatever rights the Thakors of Amod might have enjoyed in pre-British days, they would not enjoy them under the British rule unless they were regrantsd to them after the commencement of the British rule in 1817.'

Therefore, the title even of this petitioner does not depend upon the original acquisition of this land but upon the recognition by the British Rulers of the right of his ancestors and expressly or impliedly a grant by the British Rulers of the land to him. Therefore in this case also it would be incorrect to suggest that the title of the petitioner does not depend upon a grant. In the case of Mr. Jahagirdar's clients the grant was by Rulers of this State prior to the advent of the British. In the case of Mr. Patel's client, he was not in need of any grant because as we said before he relied on his own strength. But that strength could not withstand the might of the British empire and ultimately he had to depend upon his title for the grant-made to him by the British Rulers.

It may be pointed out--and it is not insignificant--that both in the case of Mr. Jahagirdar's clients and in the case of Mr. Patel's client they have both averred in the petitions that they are inamdars of the lands in question and therefore it has not only been suggested but expressly admitted that they are inamdars and the Act has application to them. It is precisely because the Act applies to them that they have come to this Court to challenge its constitutionality.

14. In our opinion, therefore, the challenge to the Act fails and the petitions must be dismissed.

15. With regard 'to costs, Mr. Jahagirdar appears for a large number of petitioners where the facts are more or less identical and the attack is also based on identical grounds. We think that the fairest order to make as far as Mr. Jahagirdar'sclients are concerned is that in the firstpetition No. 393 he will pay costs quantified atRs. 150 and with regard to all the other petitionsthe costs will be fixed at Rs. 30 each. As regardsMr. Patel's client, as the facts are different, hewill pay the taxed costs.

16. Petitions dismissed.


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