Skip to content


The Collector of Bombay Vs. Nusserwanji Rattanji Mistri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1955SC298; (1955)57BOMLR723; [1955]1SCR1311
ActsEvidence Act - Sections 115; Transfer of Property Act - Sections 8
AppellantThe Collector of Bombay
RespondentNusserwanji Rattanji Mistri and ors.
Cases ReferredCollectorof Bombay v. Municipal Corporation of
Excerpt:
the case focused on the right of the government to levy land revenue on certain lands that were held on tenure known as 'foras' under section 2 of the bombay act,1851 - the respondents thereupon instituted two suits disputing the right of the appellant to assess the lands to revenue - the court ruled that the right of the government to levy assessment was not subject matter of the land acquisition proceedings and that the effect of those proceedings was only to extinguish the rights of the occupants in the lands and to vest that the lands and to vest them absolutely in the government - further the respondent could not claim a right to pay assessment only at the rate at which it was payable under the foras land act. - land acquisition act (1 of 1894)sections 4, 5-a, 6, 39, 40 & 41: .....venkatarama ayyar, j. 1. the point for decision in this appeal is as to the liability of certainlands situated within the city of bombay to be assessed to revenue under the bombaycity land revenue act no. ii of 1876. these lands were originally known asforas lands, and the rights of the occupants of those lands were settled bybombay act no. vi of 1851, called the foras act. what these rights are, is amatter in controversy between the parties, and will be presently considered.between 1864 and 1867 the government acquired these lands for the purpose ofthe b.b.c.i. railway under the provisions of land acquisition act no. vi of1857. on 22-11-1938 these lands, being no longer required for the purpose ofthe railway, were sold by the governor-general to lady pochkhanawalla andothers as joint.....
Judgment:

Venkatarama Ayyar, J.

1. The point for decision in this appeal is as to the liability of certainlands situated within the City of Bombay to be assessed to revenue under the BombayCity Land Revenue Act No. II of 1876. These lands were originally known asForas lands, and the rights of the occupants of those lands were settled byBombay Act No. VI of 1851, called the Foras Act. What these rights are, is amatter in controversy between the parties, and will be presently considered.Between 1864 and 1867 the Government acquired these lands for the purpose ofthe B.B.C.I. Railway under the provisions of Land Acquisition Act No. VI of1857. On 22-11-1938 these lands, being no longer required for the purpose ofthe Railway, were sold by the Governor-General to Lady Pochkhanawalla andothers as joint tenants under a deed, Exhibit A. On 28-3-1939 the survivor ofthe purchasers under Exhibit A conveyed the lands in trust under Exhibit B, andthe respondents are the trustees appointed under that deed.

2. In April 1942 the appellant acting under the provisions of Bombay Act No.II of 1876, issued notices to the respondents proposing to levy assessment onthe lands at the rates mentioned therein, and calling for their representation.In their reply, the respondents denied the right of the appellant to assess thelands to revenue, and followed it up by instituting two suits before theRevenue Judge for establishing their rights. In their plaints, they allegedthat under the provisions of the Foras Act the maximum assessment leviable onthe lands was 9 reas per burga, and that the Government had no right to enhanceit; that the effect of the land acquisition proceedings between 1864 and 1867 wasto extinguish the right of the State to levy even this assessment, and thatfurther, having purchased the properties absolutely from the Governor-Generalunder Exhibit A, they were entitled to hold them without any liability to payrevenue thereon. They accordingly prayed for a declaration that the Governmenthad no right to levy any assessment on these lands, or, in the alternative,that such assessment should not exceed what was payable under Bombay Act No. VIof 1851. The appellant contested the suit. The Revenue Judge held that as aresult of the land acquisition proceedings between 1864 and 1867, the landsvested in the Government freed from any liability to pay assessment, and thatwhen the Governor-General transferred them under Exhibit A without reservingthe right to assess them, the purchasers had the right to hold them without anyliability to pay revenue. He accordingly granted a declaration that theappellant had no right to levy assessment, and that the notices issued by himunder Act No. II of 1876 were illegal. On appeal by the defendants to the HighCourt of Bombay, it was held by Chagla, C.J., Bhagwati, J. concurring, that ActNo. VI of 1851 imposed a specific limit on the right of the Government to levyassessments on the lands in question, that, further, by reason of the landacquisition proceedings the right to the Provincial Government to levyassessment even within the limits prescribed by Act No. VI of 1851 wasextinguished, and that when the lands were transferred by the Central Governmentto Lady Pochkhanawalla and others, they got them as revenue-free lands. In theresult, the appeal was dismissed. This appeal by special leave is directedagainst this decision.

3. The statutory authority under which the appellant seeks to levy assessmenton the lands is section 8 of Bombay Act No. II of 1876, and it is as follows :

'It shall be the duty of theCollector, subject to the orders of Government, to fix and to levy theassessment for land revenue.

When there is no right on thepart of the superior holder in limitation of the right of Government to assess,the assessment shall be fixed at the discretion of the Collector subject to thecontrol of Government.

When there is a right on the partof the superior holder in limitation of the right of Government, in consequenceof a specific limit to assessment having been established and preserved, theassessment shall not exceed such specific limit'.

4. It was on the footing that the respondents were 'superior holders' asdefined in the Act, that the appellant issued notices to them in April 1942. Intheir reply notices and in the plaints, the respondents did not dispute thatposition, but only contended in terms of section 8 that they had a specificright in limitation of the right of the Government to assess the lands; and theentire controversy in the Courts below was whether they had established thatright. No contention was raised that they were not superior holders as definedin the Act, and that, in consequence, no assessment could be imposed on thelands under section 8 of the Act.

5. In the argument before us, the contention was sought to be raised for thefirst time by the learned Attorney-General that the proceedings taken by theCollector under section 8 were incompetent, as that section would apply only tolands held by superior holders, that the definition of 'superior holder' insection 3(4) as meaning 'the person having the highest title under theProvincial Government to any land in the City of Bombay' would take in onlypersons who held on a derivative tenure from the Government that persons whoacquired lands from the Government under an outright sale could not bedescribed as 'superior holders' within section 3(4), and that the lands held bythe respondents were therefore outside the operation of section 8.

6. On behalf of the appellant, the learned Solicitor-General objected tothis question being allowed to be raised at this stag of the proceedings, asthat would involve investigation of questions of fact and of law, such as whetherunder the tenures in the City of Bombay, owners held the lands as superiorholders, whether under Indian jurisprudence what was paid by the occupier ofland was rent or revenue, whether the prerogative right of the Crown to assesslands subsisted in the Presidency Towns of Calcutta, Bombay and Madras andseveral other questions, for the decision of which there were not sufficientmaterials. This objection must be upheld. In view of the fact that therespondents have, at all stages, claimed immunity from assessment on the basisof section 8, we do not consider that it would be proper to allow them now tochange their front, and take up a stand wholly inconsistent with what they hadtaken, when that involves an investigation into facts which has not been made.We must, therefore, proceed on the footing that the respondents are 'superiorholders' as defined in section 3(4) of Act No. II of 1876, and that theirrights are to be determined in accordance with section 8 of the Act.

7. Construing that section, the Privy Council laid down in Goswamini ShriKamala Vahooji v. Collector of Bombay [1981] L.R. 64 I.A. 334 twopropositions : that though the language of the section would more appropriatelyapply when the dispute was as to the quantum of assessment, the right to levyit not being itself controverted, it was open to the superior holder under thissection to plead and prove that the State had no right to levy any assessment;and that the burden was on the person who pleaded a limitation on the right ofthe State to assess, to clearly and unequivocally establish it. It is,therefore, open to the respondents to plead that the land are wholly exemptfrom revenue; but the onus of making it out lies heavily on them.

8. The learned Attorney-General has sought to establish a right in therespondents in limitation of the right of the appellant to assess the lands onthree grounds : (1) the Foras Act No. VI of 1851, (2) the land acquisitionproceedings under Act No. VI of 1857, and (3) the sale deed, Exhibit A. Takingfirst the Foras Act : For a correct appreciation of its provisions, it isnecessary to refer to the history of the lands, which are dealt with therein.The Island of Bombay once formed part of the Portuguese Dominions in India. In1661 when Princess Infante Catherine was married to King Charles II of England,it was ceded by the King of Portugal to the British Crown as dowry, and by aRoyal Charter dated 27th March 1668 King Charles II granted it to the EastIndia Company. At that time the Island consisted only of the Fort and the town,and 'outside the walls of the town it was scarcely more than rock andmarsh which became a group of islands every day on high tide'. VideShapurji Jivanji v. The Collector of Bombay [1885] I.L.R. 9 Bom. 483. Itappears from Warden's Report on the Landed Tenures in Bombay and Le Mesurier'sReport on the Foras lands, that during the 18th Century the East India Companystarted reclaiming these lands, and invited the inhabitants to cultivate them,at first without payment of any assessment and subsequently on favourablerates. These payments were called 'Foras'. The meaning of this wordis thus explained by Westropp, J. in his note at page 40 in Naoroji Beramji v.Rogers (4 Bom. H.C.R. 1 :-

' 'Foras' is derived from the Portuguese word'fora', (Latine foras, from foris a door), signifying outside. It hereindicates the rent or revenue derived from outlying lands. The whole island ofBombay fell under that denomination when under Portuguese rule, being then amere outlying dependency of Bassein. Subsequently the term foras was, for themost part, though perhaps not quite exclusively, limited to the new salt battyground reclaimed from the sea, or other waste ground lying outside the Fort,Native Town, and other the more ancient settled and cultivated grounds in theisland, or to the quit-rent arising from that new salt batty ground andoutlying ground'.

9. Thus, the salt batty lands reclaimed from the sea came to be known asForas lands by association with the assessments payable thereon called'Foras'. The nature of the interest which the occupants had in theForas lands was the subject of considerable debate in the beginning of the 19thCentury. In 1804, the Company resumed some of the Foras lands for settlingpersons displaced in the Town area, and that resulted in a suit by one SheikAbdul Ambly, wherein the right of the Company to resume the lands waschallenged. The action failed, the Court upholding the claim of the Company toresume them, but at the same time, it observed that its action in dispossessingthe occupants would 'appear and be felt as a grievous hardship, if not anopen and downright injury'. Vide Warden's Report on the Landed Tenures ofBombay, pages 60 and 61. Thereafter, the Company had the matter furtherinvestigated, and there were reports on the subject by Warden in 1814 and LeMesurier in 1843. And finally the Company decided to recognise the rights ofthe occupants, and that resulted in the enactment of Act VI of 1851.

10. The relevant provisions of the Act may now be noticed. The preamble tothe Act states that,

'Whereas the East India Company are legallyentitled to the freehold reversion of the several lands heretofore paying arender called foras, the outline whereof is delineated in a plan........ andnumbered 1, subject to certain tenancies therein at will, or from year to year;whereas it is considered expedient as of grace and favour that the rights ofthe side East India Company in all of the lands included in the saidplan........... should be extinguished, save as hereinafter mentioned. It isenacted as follows :'

Section 2 enacts that :

'From and after the said 1st day of July, therights of the said Company in all of the said lands mentioned in the said planNo. 1, except those mentioned in the said plan No. 2, shall be extinguished infavour of the persons who shall then hold the same respectively as theimmediate rent-payers to the said Company, saving the rents now severallypayable in respect of such lands, which shall continue payable and recoverableby distress, or by any means by which land revenue in Bombay is or shall berecoverable, under any Act or Regulation.........'

Section 4 provides :

'Nothing herein contained shall exempt such landsfrom being liable to any further general taxes on land inBombay...........'

11. According to the appellant, the effect of these provisions was to grantthe lands to the occupants on a permanent tenure, heritable and alienable, butnot further to grant them on a permanent assessment. Reliance was also placedon the decision in Shapurji Jivanji v. The Collector of Bombay I.L.R [1885] Bom. 483, where it was held generally that the Government had the rightunder section 8 of the Act to enhance the assessments on Foras lands. There issome support for this contention in the provisions of the Act. The preambleexpressly recites that the occupants were tenants at will or from year to year,and that the reversion was with the East India Company. One consequence of thatwas that the Company had the right to eject the occupants. Now, what theCompany did under the Act was to give up that right as a matter of grace,because, as already mentioned, it would appear to have invited them to settleon the lands and cultivate them, and it did that by extinguishing its reversionas landlord. In other words, it agreed to confer on the tenants the status ofowners of lands. If that was all the scope of Act No. VI of 1851, it could notbe doubted that the rights of the State to enhance the assessments would not beaffected, because ownership of land does not per se carry with it an immunityfrom enhancement of assessment in exercise of sovereign rights, and occupantsof Foras lands cannot claim to be in a better position by reason of the Actthen owners of lands in ryotwari tracts, the assessments on which are liable toperiodic revision. But what is against the appellant is that section 2 does notstop with merely extinguishing the reversionary rights of the Company. It goesfurther, and saves expressly 'the rents now severally payable in respectof such lands', rent being used here in the sense of assessment, and adds'which shall continue to be payable'. Now, the contention of therespondents is that those words conferred on the Government a right to recoveronly the assessment which was then payable, and that there was thus alimitation on its right to enhance it. It is common ground that the assessmentpayable on these lands at that time was 9 reas per burga, and Exhibit N showsthat it was at that rate that the assessment was collected from 1858 until thelands were acquired by the Government in land acquisition proceedings. It isaccordingly contended for the respondents that under the Act, the Governmentcould not claim anything more than 9 reas per burga as assessment on the lands.

12. It is urged for the appellant that the words 'now severally payable'could not be construed as imposing a limitation on the right of the Governmentto enhance the assessment, as the occur in a saving clause, the scope of whichwas to reserve the rights of the Company and not to confer on the occupantsrights in addition to what the body of the section had granted to them. It istrue that the setting in which these words occur is more appropriate forreserving rights in favour of the Company than for declaring any in favour ofthe occupants. But to adopt the construction contended for by the appellantwould be to render the words 'now severally payable' and 'whichshall continue to be payable' wholly meaningless. Notwithstanding that thedrafting is inartistic, the true import of the clause unmistakably is thatwhile, on the one hand, the right of the Government to recover the assessmentis saved, it is, on the other hand, limited to the amount then payable by theoccupants. The contention of the respondents that under the Foras Act theyacquired a specific right to hold the lands on payment of assessment notexceeding what was then payable, must, therefore, be accepted.

13. We have next to decide what effect the proceedings taken by theGovernment under the Land Acquisition Act No. VI of 1857 during the years 1864to 1867 have on the rights of the parties. Section VIII of the Act is asfollows :

'When the Collector or other officer has made anaward or directed a reference to arbitration, he may take immediate possessionof the land which shall thenceforward be vested absolutely in the Government,free from all other estates, rights, titles and interests'.

14. The contention of the respondents which has found favour with the Courtsbelow is that under that section the effect of the vesting of the lands in theGovernment was to extinguish whatever interests were previously held over them,that the right of the Government to levy assessment was such an interest, andthat it was also extinguished. It is argued that when lands are acquired underthe Act, the valuation that is made is of all the interests subsisting thereon,including the rights of the Crown to assess the lands, as well as the interestsof the claimants therein, that what is paid to the owners is not the full valueof the lands but the value of their interests therein, deduction being made ofthe value of the right of the Government to assess from out of the full value,and that, in effect, there was an award of compensation for the right toassess, and that, therefore, that right equally with the rights of the claimantsover the lands would be extinguished. One of the awards has been marked asExhibit P, and the respondents rely on the recitals therein that thecompensation to the claimants was 'for their interest in the saidlands'. The award, it must be mentioned, directs the Government to pay theclaimants the amounts specified therein, but contains no provision for paymentof any sum as compensation to the Government for its right to assess the lands;nor does it even value that right. But the respondents contended that theGovernment being the authority to pay must be deemed to have paid itself, andthat, in any event, if they were entitled to compensation, their failure toclaim it could not affect the result, which was that the right to levyassessment would be extinguished.

15. We are unable to accept his contention. When the Government acquireslands under the provisions of the Land Acquisition Act, it must be for a publicpurpose, and with a view to put them to that purpose, the Government acquiresthe sum total of all private interests subsisting in them. If the Governmenthas itself an interest in the land, it has only to acquire the other interestsoutstanding therein, so that it might be in a position to pass it on absolutelyfor public user. In In the Matter of the Land Acquisition Act : The Governmentof Bombay v. Esupali Salebhai I.L.R [1909] Bom. 618 Batchelor, J.observed :

'In other words Government, as it seems to me, arenot debarred from acquiring and paying for the only outstanding interestsmerely because the Act, which primarily contemplates all interests as heldoutside Government, directs that the entire compensation based upon the marketvalue of the whole land, must be distributed among the claimants'.

16. There, the Government claimed ownership of the land on which there stoodbuildings belonging to the claimants, and it was held that the Government wasbound to acquire and pay only for the superstructure, as it was already theowner of the site. Similarly in Deputy Collector, Calicut Division v. AiyavuPillay [1911] 9 I.C. 341, Wallis, J. (as he then was) observed :

'It is, in my opinion, clear that the Act does notcontemplate or provide for the acquisition of any interest which alreadybelongs to Government in land which is being acquired under the Act, but onlyfor the acquisition of such interests in the land as do not already belong tothe Government'.

17. With these observations, we are in entire agreement. When Governmentpossesses an interest in land which is the subject of acquisition under theAct, that interest is itself outside such acquisition, because there can be noquestion of Government acquiring what is its own. An investigation into thenature and value of that interest will no doubt be necessary for determiningthe compensation payable for the interest outstanding in the claimants, butthat would not make it the subject of acquisition. The language of section VIIIof Act No. VI of 1857 also supports this construction. Under that section, thelands vest in the Government 'free from all other estates, rights, titlesand interests', which must clearly mean other than those possessed by theGovernment. It is on this understanding of the section that the award, ExhibitP, is framed. The scheme of it is that the interests of the occupants areascertained and valued, and the Government is directed to pay the compensationfixed for them. There is no valuation of the right of the Government to levyassessment on the lands, and there is no award of compensation therefore.

18. We have so far assumed with the respondents that the right of theGovernment to levy assessment is an interest in land within the meaning ofsection VIII of Act VI of 1857. But is this assumption well-founded We thinknot. In its normal acceptation, 'interest' means one or more of thoserights which go to make up 'ownership'. It will include for example,mortgage, lease, charge, easement and the like, but the right to impose a taxon land is a prerogative right of the Crown, paramount to the ownership overthe land and outside it. Under the scheme of the Land Acquisition Act, what isacquired is only the ownership over the lands, or the inferior rights comprisedtherein. Section 3(b) of the Land Acquisition Act No. I of 1894 defines a'person interested' as including 'all persons claiming aninterest in compensation to be made on account of the acquisition of land underthis Act, and a person shall be deemed to be interested in land if he isinterested in an easement affecting the land'. Section 9 requires thatnotices should be given to all persons who are interested in the land. Undersection 11, the Collector has to value the land, and apportion the compensationamong the claimants according to their interest in the land. Under section 16,when the Collector make an award 'he may take possession of the land whichshall thereupon vest absolutely in the Government free from allencumbrance'. The word 'encumbrance' in this section can onlymean interests in respect of which a compensation was made under section 11, orcould have been claimed. It cannot include the right of the Government to levyassessment on the lands. The Government is not a 'person interested'within the definition in section 3(b), and, as already stated, the Act does notcontemplate its interest being valued or compensation being awarded therefore.

19. It is true that there is in Act No. VI of 1857 nothing corresponding tosection 3(b) of Act No. I of 1984, but an examination of the provisions of ActNo. VI of 1857 clearly shows that the subject-matter of acquisition under thatAct was only ownership over the lands or its constituent rights and not theright of the Government to levy assessment. The provisions relating to theissue of notices to persons interested and the apportionment of compensationamong them are substantially the same. Moreover, under section VIII theGovernment is to take the lands free from all other 'estates, rights,title and interest', and 'interest' must, in the context, beconstrued ejusdem generis with 'estates' etc., as meaning right overlands, of the character of, but not amounting to an estate, and cannot includethe prerogative right to assess the lands. It must accordingly be held that theeffect of the land acquisition proceedings was only to extinguish the rights ofthe occupants in the lands and to vest them absolutely in the Government, thatthe right of the latter to levy assessment was not the subject-matter of thoseproceedings, and that if after the award the lands were not assessed to revenue,it was because there could be no question of the Government levying assessmenton its own lands.

20. Then there remains the question whether the sale deed, Exhibit A,imposes any limitation on the right of the Crown to assess the lands. The deedconveys the lands to the purchasers absolutely 'with all rights, easementsand appurtenances whatsoever' to be held 'for ever'. It doesnot, however, recite that they are to be held revenue-free. But it is arguedfor the respondents that where there is an absolute sale by the Crown as here,that necessarily imports that the land is conveyed revenue-free; and section 3of the Crown Grants Act No. XV of 1895 and certain observations in Dadoba v.Collector of Bombay I.L.R [1901] Bom. 714 were relied on as supportingthis contention. Section 3 of Act No. XV of 1895 is as follows :

'All provisions, restrictions, conditions andlimitations over contained in any such grant or transfer as aforesaid shall bevalid and take effect according to their tenor any rule of law, statute orenactment of the Legislature to the contrary notwithstanding'.

21. The contention is that as the grant is of a freehold estate without anyreservation it must, to take effect according to its tenor, be construed asgranting exemption from assessment to revenue. But that will be extending thebounds of section 3 beyond its contents. The object of the Act as declared inthe preamble is to remove certain doubts 'as to the extent and operationof the Transfer of Property Act, 1882, and, as to the power of the Crown toimpose limitations and restrictions upon grants and other transfers of landmade by it or under its authority'. Section 2 enacts that the provisionsof the Transfer of Property Act do not apply to Crown grants. Then follows section3 with a positive declaration that 'all provisions, restrictions,conditions and limitations over' shall take effect according to theirtenor. Reading the enactment as a whole, the scope of section 3 is that itsaves 'provisions, restrictions, conditions and limitations over'which would be bad under the provisions of the Transfer of Property Act, suchas conditions in restraint of alienations or enjoyment repugnant to the natureof the estate, limitations offending the rule against perpetuities and the like.But no question arises here as to the validity of any provision, restriction,condition, or limitation over, contained in Exhibit A on the ground that it isin contravention of any of the provisions of the Transfer of Property Act, andthere is accordingly nothing on which section 3 could take effect.

22. It is argued by the learned Attorney-General that this limitation on thescope of the Act applies in terms only to section 2, and that section 3 goesmuch further, and is general and unqualified in its operation. The scope ofsection 3 came up for consideration before the Privy Council in ThakurJagannath Baksh Singh v. The United Provinces (1946 F.L.J. 88. After settingout that section, Lord Wright observed :

'These general words cannot be read in theirapparent generality. The whole Act was intended to settle doubts which hadarisen as to the effect of the Transfer of Property Act, 1882, and must be readwith reference to the general context...........'

23. In this view, section 3 must also be construed in the light of thepreamble, and so construed, it cannot, for the reasons already given, have anybearing on the rights of the parties. Moreover, that section only enacts that'all provisions, restrictions, conditions and limitations over' shalltake effect according to their tenor, and what is relied on is not anyprovision, restriction, condition or limitation over, in Exhibit A whichaccording to its tenor entitles the respondents to hold the lands rent-free,but the absolute character of the interest conveyed under Exhibit A. Therefore,section 3 does not in terms apply.

24. The respondents also relied on certain observations in Dadoba v.Collector of Bombay I.L.R [1901] Bom. 714 as supporting their contention.There, the facts were that the Government had granted one parcel of land to theFree Church Mission of Scotland revenue-free under a deed dated 1-10-1884. Byanother deed dated 20-12-1887 they released their right of reversion on twoother parcels of land held by the Mission as tenants but 'subject to thepayment of taxes, rates, charges, assessments leviable or chargeable in respectof the said premises or anything for the time being thereon'. On 16-1-1888the Mission sold all the three parcels to one Janardan Gopal, and the Secretaryof State joined in the conveyance for effectually releasing the reversion ofthe Government. Before Janardan Gopal purchased the lands, there had beencorrespondence between his solicitors and the Government as to the assessmentpayable on the lands, and the Government had intimated that it would be 9 piesper square yard per annum. Subsequent to the purchase, the Collector raised theassessment payable on the lands, and the point for decision was whether hecould lawfully do so. In deciding that he could not, Sir Lawrence Jenkinsstated that the purchaser had paid full value for the lands in the beliefinduced by a Government that the assessment of 9 pies per sq. yard would bepermanent, and that on the facts, the case fell within section 115 of the EvidenceAct, and that the Government was estopped from enhancing the assessment. He wasalso prepared to hold that the correspondence between the purchaser and theGovernment prior to the sale amounted to a collateral contract not to raise theassessment. Chandavarkar, J., concurred in the decision, and in the course ofhis judgment observed :

'...... when we have regard to the nature of thetransaction, viz., that Government was selling the property out-and-out as anyprivate proprietor - when we look to the whole of the language used...... theintention of the parties must be taken to have been that the purchaser was tobe liable to pay the amount of 9 pies per square yard per annum then levied asassessment and no more'.

25. These observations have been relied on as supporting the contention thatwhen there is an absolute sale by the Government, it amounts to an agreementnot to levy more assessment than was payable at that time. But the remarks ofthe learned Judge have reference to the recitals in the deed dated 20-12-1887and the negotiations between the purchaser and the Government which arereferred to in the passage, and not to the character of the transfer as anabsolute sale; and the decision is based on a finding of estoppel or collateralcontract deducible from the correspondence between the purchaser and theGovernment. Neither section 3 of the Crown Grants Act, nor the observations inDadoba v. Collector of Bombay [1901] I.L.R. Bom. 714 lend any support tothe contention that an absolute sale of lands by the Government ipso factoconfers on the purchasers a right to hold the lands free of revenue.

26. The question then is whether on the terms of Exhibit A such a rightcould be held to have been granted. There was some discussion at the Bar as tothe correct rule of construction applicable to the deed, Exhibit A. It wasargued by the learned Solicitor-General for the appellant that being a Crowngrant, Exhibit A should be construed in favour of the Crown and against thegrantee. On the other hand, it was argued by the learned Attorney-General thatit should make no difference in the construction of the grant, whether thegrantor was the Crown or a subject, as the question in either case was what hadbeen granted; and that must be determined on the language of the deed. Whenclosely examined, it will be seen that there is no real conflict between thetwo propositions. The former is in the nature of a rule of substantive law; andits scope is that whereas the transferee from a subject acquires, unless thecontrary appears, all the rights which the transferor has in the property asenacted in section 8 of the Transfer of Property Act, a grantee from the Crowngets only what is granted by the deed, and nothing passes by implication. Butwhen the grant is embodied in a deed, the question ultimately reduces itself toa determination of what was granted thereunder. What the Court has to do is toascertain the intention of the grantor from the words of the document, and asthe same words cannot be susceptible of two different meanings, it makes nodifference whether they occur in a grant by the Crown or by the subject. If thewords used in a grant by a subject would be effective to pass an interest, thenthose words must equally be effective to pass the same interest when they occurin a Crown grant. Dealing with this question, Sir John Coleridge observed inLord v. Sydney [1859] 12 Moore P.C. 473; 14 E.R. 991 :

'But it is unnecessary for their Lordships to saymore on this point, because they are clearly of opinion, that upon the trueconstruction of this grant, the creek where it bounds the land is ad mediumfilum, included within it. In so holding they do not intend to differ from oldauthorities in respect to Crown grants; but upon a question of the meaning ofthe words, the same rules of common sense and justice must apply, whether thesubject-matter of construction be a grant from the Crown, or from a subject; itis always a question of intention, to be collected from the language used withreference to the surrounding circumstances'.

27. Exhibit A has to be construed in the light of these principles. Asalready stated, there is no recital in the deed that the purchasers areentitled to hold the lands free of assessment. On the other hand, it expresslyprovides that the properties will be subject 'to the payment of allcesses, taxes, rates, assessments, dues and duties whatsoever now or hereafterto become payable in respect thereof', which words would in their naturaland ordinary sense cover the present assessment. In Dadoba v. Collector ofBombay I.L.R [1901] Bom. 714, the Court had to consider a clause similarto the above contained in a deed executed by the Government in favour of theMission on 20-12-1887. Discussing the effect of this clause on the rights ofthe plaintiff to hold the property permanently on an assessment of 9 pies persq. yard, Chandavarkar, J. observed :

'When that deed says that the property was sold'subject to the payment of all taxes, rates, charges, assessments leviable orchargeable', it leaves the question open as to what the taxes etc., are whichare 'leviable or chargeable'. Extrinsic evidence of that is admissible, for itneither contradicts nor varies the terms of the deed, but explains the sense inwhich the parties understood the words of the deed, which, taken by themselves,are capable of explanation : see Bank of New Zealand v. Simpson (1900 A.C.182'.

28. In that case, the dispute was not as to the liability to pay anyassessment but to the quantum of assessment payable, and it was a possible viewto take that the clause in question was not decisive on that question, and thatit was left open. But here, the question is whether a right was granted to thepurchasers to hold the lands free from liability to be assessed, and the clausein Exhibit A clearly negatives such a right. Even if we are to regard thequestion as left open, as observed in Dadoba v. Collector of Bombay I.L.R [1901] Bom. 714, it will not assist the respondents, as they have notestablished aliunde any right to hold the lands free from assessment. It must,therefore, be held that far from exempting the lands from liability to beassessed to revenue, Exhibit A expressly subjects them to it.

29. It was finally contended that even if the land acquisition proceedingsbetween 1864 and 1867 had not the effect of extinguishing the right of theGovernment to levy assessment, and that even if Exhibit A conferred on thepurchasers no right to hold the land revenue-free, the assessment which theGovernment was entitled to levy under section 8 of Act No. II of 1876 waslimited to what was payable under the Foras Act No. VI of 1851, and that theappellant had no right to levy assessment at a rate exceeding the same. Theargument in support of the contention was that it was an incident of the Forastenure under which the lands were held, that the occupants were bound to payonly a fixed assessment, that the incident was annexed to the lands, and wasinseparable therefrom, that between the dates when the lands were acquiredunder the Land Acquisition Act No. VI of 1857 and 22-11-1938 when they weresold under Exhibit A they continued to retain their character as Foras lands,that if no assessment was paid on the lands during that period, it was becausethe hand to pay and the hand to receive were the same, that when they came tothe respondents under Exhibit A, they became impressed with the Foras tenure,and that, in consequence, they were liable to be assessed only at the ratepayable under Act No. VI of 1851.

30. This contention is, in our judgment, wholly untenable. When the landswere acquired under the Land Acquisition Act No. VI of 1857, the entire'estate, right, title and interest' subsisting thereon becameextinguished, and the lands vested in the Government absolutely freed from Forastenure, and when they were sold by the Government under Exhibit A thepurchasers obtained them as freehold and not as Foras lands. As the tenureunder which the lands were originally held had become extinguished as a resultof the land acquisition proceedings, it was incapable of coming back to life,when the lands were sold under Exhibit A.

31. In support of the contention that the incidents of the Foras tenurecontinued to attach to the lands in the hands of the respondents, the learnedAttorney-General relied on the following observations of Das, J. in Collectorof Bombay v. Municipal Corporation of the City of Bombay and others 1952 S.C.R. 43, 52 :-

'The immunity from the liability to pay rent isjust as much an integral part or an inseverable incident of the title soacquired as is the obligation to hold the land for the purposes of a market andfor no other purpose'.

32. But the point for decision there was whether the Municipal Corporationof Bombay could acquire by prescription a right to hold the lands rent-free,they having entered into possession under a resolution of the Government thatno rent would be charged. And the passage quoted above merely laid down thatwhen title to the land was acquired by the Municipal Corporation by prescription,one of the rights acquired as part of the prescriptive title was the right tohold the lands revenue-free. But the question here is whether the right to holdthe lands under a fixed assessment survived after the acquisition by theGovernment under the land acquisition proceedings, and that depends on theeffect of section VIII of Act VI of 1857. If, as observed in the above passage,the liability to pay assessment was 'an integral part or an inseverableincident of the tittle', then surely it was also extinguished along withthe title of the occupants under section VIII of Act No. VI of 1857.

33. There is another difficulty in the way of accepting the contention ofthe respondents. The Foras Act was repealed in 1870 by Act No. XIV of 1870 longprior to the date of Exhibit A, and therefore, even if we hold that the Forastenure revived in the hands of the purchasers under Exhibit A, the rights underthe Foras Act were no longer available in respect of the lands. Section 1 ofAct No. XIV of 1870 saves rights 'already acquired or accrued', andit is argued that the rights now claimed are within the saving clause. But asthe lands had all been acquired under Act No. VI of 1857 between 1864 and 1867there were no rights in respect of the lands which could subsist at the date ofthe repeal, and the rights now claimed by the respondents are not within thesaving clause. In the result, it must be held that the right of the appellantto levy assessment under section 8 of Act No. II of 1876 is not limited by anyright in the respondents.

34. We accordingly allow the appeal, set aside the judgments of the Courtsbelow, and dismiss both the suits instituted by the respondents with costthroughout.

35. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //