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Dhondi Subhane Power Vs. Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 16 of 1922
Judge
Reported inAIR1923Bom478; (1923)25BOMLR785
AppellantDhondi Subhane Power
RespondentSecretary of State for India
DispositionAppeal dismissed
Excerpt:
bombay hereditary offices act (bom. act iii of 1874), section 9, clauses (1) and (3) 11, iia - bombay revenue jurisdiction act (bom. act x of 1876) section 4(c)-indian limitation act (ix of 1908), schedule i, article 14-forfeiture of land by collector for arrears of revenue-limitation-jurisdiction. ;the predecessor-in-title of defendants 2 to 8 alienated his vatan land to the plaintiff. after the death of the alienor the defendants applied to the collector to take proceedings for the protection of the vatan. on october 5, 1904, the collector made a declaration, under section 11 of the bombay hereditary offices act, that the alienation was null and void. the collector did not summarily resume possession of the land but decided to assess it at a full rent. on july 6, 1908, the collector..........order requiring such assessment to be made.9. i, therefore, conclude that there were arrears of land revenue for the recovery of which the collector had jurisdiction to declare the land in holding forfeited under section 153 of the bombay land revenue code.10. it is next contended that the collector has not complied with one of the conditions precedent to the exercise of his jurisdiction in that no proper notice of forfeiture was given under sections 153 and 166 of the bombay land revenue code. notice was given but there was a mistake of detail as to the years for which the land revenue was in arrears. it was a misdescription which in no way misled the plaintiff because he has admitted in his statement (exhibit 7) that he himself was aware that the rent was due from the date of the.....
Judgment:

Pratt, J.

1. The plaintiff sued for a declaration that the order of forfeiture made by the Collector on March 10, 1915, was invalid. The order of forfeiture was made under the following circumstances:

2. The predecessor-in-title of defendants Nos. 2 to 8 had in the year 1885 alienated their Vatan land to the plaintiff'. After the death of the alienor, the defendants applied to the Collector to take proceedings for the protection of the Vatan and the Collector, on October 5, 1904, made a declaration under Section 11 of Bombay Act III of 1874 that the alienation was null and void.

3. Thereafter there were two courses open to the Collector under Section 11 -either (1) to summarily resume possession of the land; or (2) to assess it at the rate prescribed under Clause 2 of Section 9, i.e., at the full rent ordinarily paid by tenants of land of similar description in the same locality.

4. The Collector acted on the second alternative and decided not to summarily resume possession but to assess the land at a full rent. His order is quoted in the judgment of the District Judge and is as follows : 'Having no material to decide at once what a full rent would be, I close their proceedings, leaving it to the respondent to move further in the matter when he is ready.' Later, on July 6, 1908, the Collector held further proceedings and assessed the land at a rental of Rs. 75 per annum.

5. The Collector, in 1915, forfeited the land because the plaintiff had not paid the full amount of arrears of rent then due. The plaintiff claims that the full amount had been paid and the question is whether the rent was due from July 6, 1908, when the assessment was fixed, or from October 5, 1901, when the Collector made his declaration that the alienation was null and void. If the rent ran from the former date there were arrears of rent due, and if from the latter no arrears were due.

6. Mr. Koyajoe's contention is that the plaintiff is liable to pay rent only from the date when the assessment was made. But I think the terms of Section 11A negative that construction. The assessment of land was an alternative to the summary resumption of possession. The order that the land was liable to assessment must, therefore, mean assessment from the date of the order. From that date the person in possession is either wrongfully in possession or a tenant liable to pay either mesne profits or rent from the date of the order.

7. Again the assessment was made under Clause 2 of Section 9 which refers to cases in which Vatan property is resumed after an alienation prior to the date of the Act, and it is clear from Clause 1 of Section 9 that in such a case profits from the date of the order declaring alienation to be null and void are resumable. The inference must be that any assessment levied under Section 11A would also be charged from the date of the same declaration.

8. Mr. Koyajee lays stress on words 'thenceforward revert to Watan' in Section 11A-perhaps these words would have been better placed at the end of Section 11. They can only mean that the Act regards the restoration of the Vatan complete after dispossession or assessment. But they do not indicate that the assessment should not be levied from the date of the order requiring such assessment to be made.

9. I, therefore, conclude that there were arrears of land revenue for the recovery of which the Collector had jurisdiction to declare the land in holding forfeited under Section 153 of the Bombay Land Revenue Code.

10. It is next contended that the Collector has not complied with one of the conditions precedent to the exercise of his jurisdiction in that no proper notice of forfeiture was given under Sections 153 and 166 of the Bombay Land Revenue Code. Notice was given but there was a mistake of detail as to the years for which the land revenue was in arrears. It was a misdescription which in no way misled the plaintiff because he has admitted in his statement (Exhibit 7) that he himself was aware that the rent was due from the date of the Collector's order in 1904. Nor can it be said that this misdeacription in any way involves a violation of the terms of Section 166 of the Bombay Land Revenue Code, for the terms of that section do not make it obligatory upon the Collect or to specify for what years the land revenue was in arrears.

11. As the Collector's order was intra vires the suit is barred not only by Article 14, Schedule I, of the Indian Limitation Act, but also by Section 4(c) of the Bombay Revenue Jurisdiction Act.

12. I would, therefore, dismiss this appeal with costs.

Fawcett, J.

13. I agree. I would only add on the first point that has been argued that Section 9, Clause 1, of the Bombay Hereditary Offices Act, III of 1874, expressly says that an order giving the Vatandars profits of the Vatan should have effect from the date of the Collector's order, and there is nothing in Section 11A that can, in my opinion, be held to apply a different principle. When that section says 'he may assess it at the rate prescribed in Clause 2, Section,' it seems to me to refer to his directing that the person in possession should pay the full rent specified in Clause 2 of Section 9. It is not, in my opinion, essential for the efficacy of such an order that he should in the same order state the amount this full rent comes to. As in the present case, it may obviously be necessary to make further inquiry on that point, and though of course the amount of full rent should be determined within a reasonable time, yet the case falls within the principle 'id certum eat quod certain reddi potest'. Accordingly I think there is no reason to differ from the view taken by both the lower Courts, and that the appellant became liable to pay the full rent, whatever it was, from the date of the Collector's order.


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