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Anant Vishnu Khare Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Special Civil Application No. 37 of 1960
Judge
Reported in(1961)63BOMLR371
AppellantAnant Vishnu Khare
RespondentThe State of Bombay
DispositionAppeal Dismissed
Excerpt:
madhya pradesh land revenue code (ii of 1955), section 185 -- berar land revenue code, 1928, section 67 -- occupant of unalienated land adjoining bank of river--river changing ' its course and laying bare soil of river bed adjoining land--whether such occupant gets any right in soil of river wed under acts--alluvial land, what is.;the occupant of unalienated land adjoining the bank of a river does not get any right in the soil of the river bed exposed on account of the river changing its course, i either under section 67 of the berar land revenue code, 1928, or section 185 of the madhya pradesh land revenue code, 1955.;land formed on account of dereliction of its bed by a river cannot be called alluvial land formed on its bank. alluvial land is land formed on or added to the ground..........before the naib tahsildar, akot, under sub-sections (2) and (3) of section 67 of the berar land revenue code (hereinafter referred to as the code) wherein he alleged that the soil of the river bed to the east, south and west admeasuring 29 acres, 12 gunthas, belonged to him, he is entitled to get 10 acres and 3 gunthas out of the aforesaid 29 acres and 12 gunthas by way of recompensation and he is entitled to get the remaining land settled on him as of right, it being adjacent to the aforesaid fields. it appears that this application was forwarded to the deputy commissioner by the naib tahsildar and was administratively dealt with by the former, without giving any further hearing to petitioner no. 1. on april 8, 1957, the deputy commissioner, i.e. the collector, passed an order.....
Judgment:

Tambe, J.

1. Petitioners Anant Vishnu Khare and Ramchandra Brijlal have filed this petition under Articles 226 and 227 of the Constitution of India wherein they pray for issuance of a writ of certiorari or such other statable direction or order quashing the orders dated March 5, 1959, made by the Sub-Divisional Officer, respondent No. 4 hereto, dated May 6, 1959, made by the Collector, Akola, respondent No. 3 hereto, and dated November 18, 1959, made by the Bombay Revenue Tribunal, respondent No. 2 hereto, and also the sales of the land in question held on December 27, 1958, in favour of respondent Nos. 5 to 10. Respondent No. 1 is the State of Bombay. The petitioners further pray for issuance of a writ of mandamus or such other suitable direction or order forbidding obstruction by any of the respondents to the petitioners' ownership and possession over the land in question admeasuring 29 acres 12 gunthas.

2. Facts giving rise to this petition may be briefly stated. Petitioner No. 1 Mr. A. V. Khare was an occupant, of unalienated. land bearing fields Nos. 78, 79 and 80 situate in mauza Umri, taluq Akot, district Akola. These fields were bounded on the east, south and west by river Purna. Beyond this part of the bed of the river to the east, south and west are the fields of other occupants. About the year 1944-45, river Purna suddenly changed its course and started flowing to the north of these fields. In doing so, the river encroached on petitioner No. 1's fields 78, 79 to the extent of 10 acres and 3 gunthas. It resulted in laying bare the soil of the former river bed adjoining the eastern, southern and western boundaries of these fields. Land thus laid bare admeasured 29 acres and 12 gunthas.

3. On August 12, 1955, petitioner No. 1, through his agent Ramchandra Yeshwant Phadke, filed an application before the Naib Tahsildar, Akot, under Sub-sections (2) and (3) of Section 67 of the Berar Land Revenue Code (hereinafter referred to as the Code) wherein he alleged that the soil of the river bed to the east, south and west admeasuring 29 acres, 12 gunthas, belonged to him, he is entitled to get 10 acres and 3 gunthas out of the aforesaid 29 acres and 12 gunthas by way of recompensation and he is entitled to get the remaining land settled on him as of right, it being adjacent to the aforesaid fields. It appears that this application was forwarded to the Deputy Commissioner by the Naib Tahsildar and was administratively dealt with by the former, without giving any further hearing to petitioner No. 1. On April 8, 1957, the Deputy Commissioner, i.e. the Collector, passed an order that the soil of the river bed laid bare on account of sudden abandonment of its course by river Purna was not alluvial land. There being several claimants to this land he directed the Sub-Divisional Officer, Akot, to divide this land in suitable survey numbers, each being of not less than 5 acres in area, and sell by auction each survey number separately. The Sub-Divisional Officer accordingly divided the aforesaid area of the river bed and sold each survey number separately on December 27, 1958, and these lands have been purchased at the auction by respondents Nos. 5 to 10. The total sale proceeds amounted to Rs. 17,100.

4. Petitioner No. 1 thereafter filed another application under Section 185(2) of the Madhya Pradesh Land Revenue Code, wherein he prayed that the sales held on December 27, 1958, in favour of respondents Nos. 5 to 10 be set aside and the land be settled 011 him in Bhumidhari rights. It may be stated that prior to October 1, 1955, the law in force in the four districts of Akola, Amravati, Buldana and Yeotmal was the Berar Land Revenue Code and in other parts of Madhya Pradesh, the C. P. Land Revenue Act, The Legislature of the then Madhya Pradesh State enacted the Madhya Pradesh Land Revenue Code, 1954, to consolidate and amend the law relating to land revenue; it came into force on October 1, 1955, and since then the law in force in all the eight districts of Vidarbha is the Madhya Pradesh Land Revenue Code and it, is for this reason that petitioner No. 1 made an application under Section 185(2) of the Madhya Pradesh Land Revenue Code. The provisions of Section 67 of the Berar Land Revenue Code and those of Section 185 of the Madhya Pradesh Land Revenue Code are identical.

5. The Sub-Divisional Officer dismissed petitioner No. 1's application on March 5, 1959. It appears that in the meantime petitioner No. 1 sold these fields to petitioner No. 2 and, therefore, both the petitioners took an appeal against the order of the Sub-Divisional Officer to the Collector, who affirmed the order of the Sub-Divisional Officer and dismissed the appeal by his order dated May 6, 1959. The petitioners then took a second appeal to the Bombay Revenue Tribunal. The second appeal also was dismissed. Reasons given by the learned Members of the Tribunal in dismissing the appeal were:

The provisions of Section 185(1) and (2) are obviously not applicable to such abandoned river beds. Land in such river beds are liable to be disposed of by the Collector under Section 149(1) read with clause (a) of Sub-section (2) of the said section. The action taken by the Collector in disposing of the land by public auction in this case was, therefore, quite correct and does not call for interference.

Feeling aggrieved, the petitioners have filed this petition under Articles 226 and 227 of the Constitution of India, praying for the reliefs stated above.

6. Mr. M. R. Bobde, learned Counsel for the petitioners, contends that the revenue authorities were in error in holding that the abandoned river bed was not land formed by alluvial on the bank of river Purna. According to him, the aforesaid land admeasuring 29 acres, 12 gunthas was alluvial land formed on the bank of river Purna; the petitioners' fields 78, 79 and 80 adjoin the bank of river Purna; they are, therefore, entitled to get this land in Bhumidhari rights on payment of requisite premium either under Sub-section (2) of Section 67 of the Berar Land Revenue Code or under Sub-section (2) of Section 185 of the Madhya Pradesh Land Revenue Code. Mr. Bobde places reliance on the decisions reported in Secretary of State v. Raja of Vizianagram I.L.R. (1921) Mad. 207, Krishna Bhaao v. Ganpat Singh (1900) 14 C.P.L.R. 97, Haradm Achariya v. Secretary of State (1917) 20 Bom. L R 49 and Gangaram Ramji (1930) 13 N.L.J. 121. Mr. S. N. Kherdekar, who appears for some of the purchasers and Mr. G. R. Mudholkar, who appears for the State of Bombay, support the view taken by the Revenue authorities.

7. Section 185 of the M. P. Land Revenue Code, on which the petitioners have founded their claim, reads:-

(1) Alluvial land formed on any bank shall vest in the State Government but the tenure-holder, if any, of the land adjoining such bank shall be entitled to the use of the alluvial land so added to his holding free from the payment of land-revenue during the current term of settlement, unless the area added to his holding exceeds one acre.

(2) When the area of alluvial land added to a holding exceeds one acre and it appears to the Deputy Commissioner that such land may, with due regard to the interests of the public convenience and public revenue, be disposed of, he shall offer such land in Bhumidhari rights to the tenure-holder of such holding at a premium which shall not exceed twenty times the fair assessment of the land so formed. If the said tenure-holder shall refuse the offer, the Deputy Commissioner may dispose of the land in accordance with Section 149.

(3) Where any holding is diminished in area by diluvion to an extent greater than one acre, the land-revenue payable on such holding shall be decreased.

It is not in dispute that the petitioners' fields Nos. 78, 79 and 80 adjoin one of the banks of river Purna as it ran prior to the year 1945. The soil of its river bed which now is made available for cultivation on account of the sudden abandonment of its course by river Purna which admeasure 29 acres 12 gunthas, exceeds one acre. The petitioners would, therefore, be entitled to get Bhumidhari rights in this land on payment of requisite premium provided they are able to establish that 29 acres and 12 gunthas of land is alluvial land formed on the western, northern and eastern bank of Purna. The question, therefore, that arises for consideration is whether the soil of the river bed exposed on account of the river changing its course suddenly is alluvial land formed on any of its banks.

8. The term 'alluvial' has not been denned in the Act. Webster gives the meaning of the term as '' pertaining to or having the character of alluvium: deposited or thrown up by the action of waves or currents of water; as alluvial deposits; alluvial soil.' The meaning of 'alluvium' given is 'earth, sand, gravel, and other transported matter, which has been washed away, and thrown down by rivers, floods, or other causes, upon land not permanently submerged beneath the waters of lakes or seas.' The meaning of the word 'alluvion' given is 'a gradual washing or carrying of earth or other substances to a shore or bank; the earth thus added.' The meaning of the word 'bank' given by Webster in connection with a water-course, is 'the ground bordering a watercourse, whether steep or flat.

9. Thus, according to natural and ordinary meaning of that term, the alluvial land is land formed on or added to the ground bordering a water-course by gradual washing or carrying of earth or other substances thereon. As a legal term also the meaning of 'alluvial land' is the same.

10. Accretion-a thing becoming one's property by accruing to something which one already owns and becoming incorporated in it-is one of the modes of acquisition of property. In Roman Law it is termed as 'accessio'. The property so gained may have been previously either a res nullius or a res aliena. Instances given of accessio of a res nullius are: (1) Alluvio, where laud adjoins a river and the action of the stream imperceptibly deposits earth upon or adds it to the land in question, the earth so deposited or added becomes the property of the owner of the land by accessio. (2) Insula nata, where an island is formed in a river, a line, is drawn down the middle of the river, and if the island falls to one side of the line it belongs wholly to the owner of that bank, but if it cuts the island it is divided between the owners of the two banks accordingly. But if both banks belong to the same person the island is wholly his. (3) Alveus derelictus, if a river forsakes its old course and flows in another direction, the old bed of the river is divided between the owners of the banks, the line of division following the centre of the channel. (Leage's Roman Private Law, Second Ed., by Ziegler, pp. 151-152. The Institutes of Justinian, by Sandars, Fourteenth Impression, pp. 99, 100).

11. The position under English law is stated thus in Coulson and Forbes on Waters and Land Drainage, 5th ed., pp. 37-38:

Land formed by alluvion, or gradual and imperceptible accretion from the sea, and land gained by dereliction, or the gradual and imperceptible retreat of the sea, belongs to the owner of the adjoining terra firma. Where the increase is sudden or perceptible, the land gained still belongs to its original owner. The word 'imperceptible' means imperceptible in progress, and not in result-that is to say, where the increase cannot be observed as actually going on, though a visible increase is observable every year.

'The whole doctrine of accretion', said Smith, L.J., 'is based upon the theory that from day to day. week to week, and month to month a man cannot see where his old line of boundary was by reason of the gradual and imperceptible accretion of alluvium to his land,'

12. In Corpus Juris Secundiim, Vol. 93, under the head 'Waters' sub-head 'Accretion and Alluvion' in para. 76, at pp. 750 and 751 it is observed:

Accretion is the process of gradual and imperceptible addition to riparian lands caused by the action of the water in washing up sand, earth, gravel, or other materials; and its essential feature is that the addition is imperceptible, by which is meant that observers cannot perceive the increase of the land while the process is going on, although observations taken at considerable intervals may disclose the fact that greater or lesser additions to the share have actually been made. The land formed as the result of the process of accretion is usually termed 'alluvion', although the term 'accretion' has been used to designate the result as well as the process...

At page 751 it is observed:

'Reliction' differs from 'alluvium' in this, that the former term is applied to land made by the withdrawal of the waters by which it is covered.

13. It, would thus be clear that in these three different systems of law lands formed by process of alluvion and the land laid bare as a result of adjoining water-course abandoning its course are treated and considered as different and distinct modes of accretion to the property of the owners of the bank of the water-course. In the case of accretion by alluvion or alluvio there is deposition of soil and sand to the foreshore of the sea or the banks of the river, and in the other case there is no such deposition but only dereliction of its bed by a water-course. Dealing with a case of accretion by alluvion their Lordships of the, Privy Council in Sree Eckowrie Sing v. Heeraloll Seal (1868) 12 M.I.A. 136 observed as follows (p. 140) :-.The title by accretion to a new formation generally, is not founded on equity of compensation, but on a gradual accretion by adherence to some particular land which may be termed the nucleus of accretion. The land gained will then follow the title to that parcel to which it adheres...

14. It cannot be said that a derelicted river-bed adheres to the bank.

15. The nature and extent of the rights which the owners of riparian lands acquire in lands formed by these two processes would depend on the law in force in that particular area. Prior to the year 1825 there was no statute law in India regulating these rights. Bengal Regulation 11 of 1825 was enacted to fill in the lacuna. The enactment, however, was operative in territories immediately subject to the Presidency of Fort William. Section 2 of this Regulation provides that where any clear and definite usage is established in this respect, then the claims and disputes should be decided in accordance with the well-established, clear and definite local usage or customs; and the third section provided that where there may be no local usage of the nature referred to in the previous section (i.e. in Section 2), the general rules declared in the following sections should be applied to the determination of all claims and disputes relating to land gained by alluvion or by dereliction either of a river or the sea. It is not necessary to deal in detail with these various rules. Suffice it to say that even in these rules land formed by alluvion and land formed by dereliction either of a river or of sea were treated on a different and distinct footing. This Regulation No, 11 of 1825 was adopted as a law for the State by some States. In the territories formerly known as Berar territories, i.e. territories consisting of Amravati, Akola, Buldana and Yeotmal districts, the provisions of the Bengal Regulation were not made applicable. Instead, in the Berar Land Revenue Code, which was for the first time enacted in 1896, provisions were made relating to lands formed by alluvion. This enactment was subsequently repealed by the Berar Land Revenue Code enacted in 1928, and this was the law in force at the time river Puma is said to have abandoned its course in about the year 1945.

16. Sub-section (1) of Section 41 of the Code provides that save as otherwise provided by any law for the time being in force all lands, public roads, lanes and paths, the bridges, ditches, dykes and fences on or beside the same, the beds of rivers, streams, nalas, lakes and tanks, and all canals and water-courses, and all standing and flowing water, and all rights therein, which are not the property of persons are, and are hereby declared to be the property of the Crown for the purpose of the Province. Section 67 need not be reproduced here as we have already reproduced above Section 185 of the Madhya Pradesh Land Revenue Code, . which is in identical terms. Reading these two sections together, it is clear that the river-beds, as well as alluvial land formed, vests in the Crown. There are, however, certain rights conferred on the owners of unalienated land adjoining the bank of a water-course in respect of the alluvial land formed on its bank, and that right is: if the land formed on the bank is one acre or less than one acre, the owner of the adjoining land is entitled to use that alluvial land so added to his holding free from any payment of land revenue; but if it, exceeds one acre, then he gets a right of first refusal in respect of acquiring that land on payment of prescribed premium. It is abundantly clear that the land formed on account of dereliction of the water-course, in the instant case dereliction of its bed by the river Puma, cannot in any sense be called alluvial land; at any rate it is clear that it is not an alluvial land formed on its bank i.e. a ground forming the bed of river Puma. Further, no doubt is left in the mind about the intention of the Legislature in this respect when one turns to the provisions of Sub-section (1) of Section 68 which provides that in alienated holdings which consist of entire villages, all newly-formed islands, abandoned river beds and alluvial land shall be deemed to be an addition to the holding and shall be held subject to the same privileges, conditions or restriction as the holding itself, and no additional land revenue shall he payable in respect thereof during the current term of settlement. It is clear that where the Legislature had intended to confer any rights in respect of the abandoned river-bed on the owners of the land forming bank of the river, the Legislature has in clear terms said so. For reasons stated above, in our judgment the petitioners get no right in the soil of. the river-bed which has been abandoned by the river Purna, either under Section 67 of the Berar Land Revenue Code, or under Section 185 of the Madhya Pradesh Land Revenue Code.

17. Two of the decisions on which reliance was placed by Mr. Bobde are of no assistance to the petitioners. In Haradas Achariya v. Secretary of State it is held that the bed of public navigable river is the property of the Government though the banks may be the subject of private ownership. If there be slow accretion to the land on either side, due, for instance to the gradual accumulation of silt, this forms part of the estate of the riparian owner to whose bank the accretion has been made. We have already shown that the land which is laid bare on account of the abandonment of its course by a river is not an. accretion to or an addition to the bank of the river. In Secretary of State v. Raja of Vizianagram, their Lordships were dealing with a case of a land formed as a lateral extension by process of alluvion to the land of the Raja of Vizianagram, a riparian owner. A contention was raised that the formation of land was not gradual, slow and imperceptible and, therefore, the Raja gets no right in the land so formed. In dealing with the contention their Lordships observed that the actual rate of progress necessary to satisfy the rule when used in connection with English rivers is not necessarily the same when applied to the rivers in India. Their Lordships approved the rule laid down in the judgment of Mr. Justice Ayling which was (p. 213) :

It seems to me the recognition of title by alluvial accretion is largely governed by the fact that the latter is due to the normal action of physical forces; and the different conditions of Indian and English rivers is such that what would be abnormal and almost miraculous in the latter is normal and common place in the former, as pointed out by their Lordships of the Privy Council in Srinath Roy v. Dinalandhu Sen I.L.R. (1914) Cal. 489 : S.C.L.R. 41 IndAp 221.

This decision is no authority to hold that the abandoned river-bed is an accretion to the property of the riparian owner. The third decision, namely, in the case of Gangaram Ramji, is in the first instance a decision of a Revenue Member of the former Madhya Pradesh and is not a binding authority. Apart from it, when one reads the order of the learned Revenue Member, it is clear that he has not laid down any general proposition of law as such but has only in the peculiar circumstances of the case decided it in the manner he has decided it. The learned Member at the conclusion of his order observes:

This decision has been given on the merits of a particular case and is not intended to lay down any general proposition of law regarding the treatment of abandoned river bed.

This decision, therefore, is also of very little assistance to the applicant.

18. In the result, the application fails and is dismissed. The rule is discharged with costs.


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