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Brijchandra Gordhandas Jagirdar Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR911
AppellantBrijchandra Gordhandas Jagirdar
RespondentThe State of Gujarat and anr.
Cases ReferredHarshadrai v. Collector of Surat and Anr.
Excerpt:
.....therefore, clearly not a grant of the soil and the only question would be whether it is a grant of land revenue or a grant of partial exemption from payment of land revenue. 7. the state, however, contended that this construction of the sanad would not accord with the definition of 'personal inam' contained in section 2(1)(e). the grant would not fall within clause (ii) of section 2(1)(e) because the conditions of that clause are not satisfied. there are two conditions which must be fulfilled in order to attract the applicability of clause (ii). one is that the grant must be 'in respect of any right, privilege, perquisite or office' and the other is that the grant must be 'entered as class i, ii, iii, iv or v in the records kept under the rules made under the pensions act, 1871.'both the..........and six corresponding with the fifth of the victorious month of safer in the hijri year 1221.the inam granted under the sanad was admittedly a 'personal inam' within the meaning of section 2(10) of the bombay personal inams abolition act, 1952 and it was, therefore, extinguished by reason of section 4 of the act. the petitioner was the holder of the inam at the relevant time and since his interest in the inam was extinguished, he made an application to the district deputy collector for compensation under section 17 of the act. the district deputy collector took the view that the inam was a grant of exemption from payment of land revenue and the petitioner was, therefore, by reason of section 17 sub-section (5) not entitled to any compensation and the application was accordingly.....
Judgment:

P.N. Bhagwati, J.

1. The short question which arises for determination in this petition is as to the true nature and character of inam granted by the British Government to the ancestors of the petitioner on 25th April 1806. The original Sanad under which the inam was granted was in Urdu but an English translation of the Sanad was produced before the District Deputy Collector and it was accepted as a correct translation by both sides at all stages of the proceeding including the appeal before the Revenue Tribunal. Before us, Mr. B.R. Sompura on behalf of the State, attempted to argue that this translation was incorrect in a material particular and produced before us another translation which was an official translation and which too was on the record of case but we do not think we can refer to that translation as that was not the translation relied upon before the Revenue Tribunal and the case before the Revenue Tribunal, as before the District Deputy Collector, proceeded on the commonly accepted basis that the other translation was the correct translation, though we may point out that in our view the difference between the two translations is not very material and does not affect the decision of the question before us. Taking as our basis the translation which was accepted by both sides before the Revenue Tribunal as the correct translation, the Sanad was in the following terms:

Whereas Nagardas son of Kishandas and Ramdas son of Brijbhukhandas have displayed genuine fidelity, staunch loyalty, sincerity and devotion in the discharge of all the affairs entrusted to them by the Powerful Government and whereas in view of their good wishes for Government and services rendered by them the English Company Bahadur (i. e. the East India Company) confer and settle upon the said two Gentlemen and their Farzandan (off spring, progeny, sons, daughters, children) from generation to generation, in Inam as annuity the village of Majigaon in Paranah Chikli in the Athavisi port of Surat yielding an annual revenue of rupees two thousand. The said two gentlemen are to appropriate the amount of revenue of the said village for their subsistence, commencing from the Mrig Samvat Year one thousand eight hundred and sixty three Hindi, corresponding with June 1806 A. D and to continue to pray for the eternal Government.

In all other matters they are to continue to be obedient and subservient to the dignified orders of the English Government and orders of the Department of the Supreme Court of the said Government.

Written on the 25th twentyfifth of April in the Christian year one thousand eight hundred and six corresponding with the fifth of the Victorious month of Safer in the Hijri Year 1221.

The inam granted under the Sanad was admittedly a 'personal inam' within the meaning of Section 2(10) of the Bombay Personal Inams Abolition Act, 1952 and it was, therefore, extinguished by reason of Section 4 of the Act. The petitioner was the holder of the inam at the relevant time and since his interest in the inam was extinguished, he made an application to the District Deputy Collector for compensation under Section 17 of the Act. The District Deputy Collector took the view that the Inam was a grant of exemption from payment of land revenue and the petitioner was, therefore, by reason of Section 17 Sub-section (5) not entitled to any compensation and the application was accordingly rejected. The petitioner carried the matter in appeal to the Revenue Tribunal but the Revenue Tribunal agreed with the view taken by the District Deputy Collector and rejected the appeal. Hence the present petition challenging the decision of the Revenue Tribunal.

2. The main question which arises for determination in the petition is whether the petitioner as Inamdar is entitled to compensation for abolition of his interest in the inam under Section 17 of the Act. In order to arrive at a proper determination of this question it is necessary to refer to a few provisions of the Act. The Act was passed by the Legislature in implementation of its policy of agrarian reform and it was enacted, as its long title and preamble show, to abolish personal inams in the State of Bombay. Section 2(1)(e) defines 'personal inam' to mean:

(i) 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.

(ii) 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, HI, IV or V in the records kept under the rules made under the Pensions Act, 1871.

This was the definition as originally enacted in the Act but by Gujarat Act 42 of 1961 Explanation II was introduced with retrospective effect and this Explanation reads as follows:Explanation II: - In Sub-clause (i) of this clause the reference to a grant of land shall include a reference to a grant consisting of a share in the revenue of a village, portion of a village or land;

Section 3 exempts certain inams from the operation of the Act but that provision has no application and we need not say anything about it. Section 4 extinguishes all personal inams and says that, save as expressly provided by or under the provisions of the Act, all rights legally subsisting on the appointed day in respect of such personal inams shall be deemed to have been extinguished, subject to certain exceptions which are not material. Section 5 provides that all inam villages or inam lands shall be liable to the payment of land revenue and the 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 and the inferior holder holding inam land on payment of annual assessment only shall become the occupants in respect of such land. Then come Sections 6 and 6A which provide for compensation in cases of personal inams falling within Section 2(1)(e)(ii) and Explanation II to Section 2(1)(e)(i). These sections may be reproduced in extenso:

6. Notwithstanding anything contained in any law, usage, settlement, grant, sanad or order but subject to the provisions of this Act, a sum equal to seven times the amount of a cash allowance referred to in Section 2(1)(e)(ii) if any, due to an inamdar as personal Inam shall be paid to him as compensation in consideration of the extinguishment of his right to receive such allowance.

6A. In the case of a personal Inam consisting of a share in the revenues of a village, portion of a village or land referred to in Section 2(1)(e)(i), a sum equal to seven times the amount of such revenues received by or due to the inamdar for the year immediately preceding the appointed date shall be paid to the inamdar as compensation for the abolition of the personal inam.

The rest of the sections are not material barring Section 17 Sub-sections (1) and (5) which provide as follows:

17. (1) If any person is aggrieved by the provisions of this 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 this Act, such person may apply to the Collector for compensation.

(5) 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.

It was under Section 17 Sub-section (5) that the claim for compensation made by the petitioner was rejected by the Revenue Tribunal. The question is whether the rejection was justified.

3. It was common ground between the parties that if the inam was a grant of total or partial exemption from payment of land revenue only, Section 17 Sub-section (5) would apply and the petitioner would not be entitled to claim any compensation for abolition of the inam since the only effect of the abolition would be to make the inam village subject to the payment of full assessment. But the contention of the petitioner was that the inam was not a grant of total or partial exemption from payment of land revenue. The inam was, argued the petitioner, a grant of land revenue of Majigaon village and since the right of the petitioner to collect and appropriate such land revenue was abolished, the petitioner was entitled to compensation computed in accordance with the provisions of Section 6A. The State on the other hand urged that the inam was not a grant of land revenue but a grant of partial exemption from payment of land revenue (partial because a quit-rent of Rs. 6 per year was payable by the petitioner) and Section 17 Sub-section (5), therefore, precluded the petitioner from claiming any compensation from the State. The dispute between the parties thus centred round the question whether the inam was a grant of land revenue or a grant of partial exemption from payment of land revenue. The determination of this question depends on the true nature and character of the grant and for that purpose it is necessary to look at the language of the Sanad.

4. Now one thing is clear that if the grant is a grant of the soil, it cannot be a grant of land revenue and it, therefore, becomes necessary to first consider whether the grant is a grant of the soil. There is ample authority for the proposition that a grant to an inamdar is ordinarily of the royal share of the revenue and the ordinary presumption, therefore, is in favour of the grant being limited to the royal share of the revenue unless there are clear and express words indicating a grant of the soil. In Krishnarao Ganesh v. Rangrao 4 Bombay High Court Reports I A.C.J. Westropp C. J. said: 'Sanadi grants in inam...are generally speaking, more properly described as alienations of the royal share in the produce of land, i. e., of land revenue, than grants of land, although in popular parlance, and in this judgment, occasionally so-called'. The learned Chief Justice repeated this observation as being undoubtedly true in the subsequent case of Rowji Narayan v. Dadaji Bapuji 1 Bom. 523, but he qualified it by adding that 'if words are employed in a grant, which expressly, or by necessary implication, indicate that Government intends that, so far as it may have any ownership in the soil, that ownership may pass to the grantee, neither Government nor any person subsequently to the date of grant deriving under Government, can be permitted to say that the ownership did not so pass'. He then added: 'In the sanad in evidence here, whosoever framed it, was apparently determined that no ambiguity should exist as to what the force of the term 'village' might be; and, in order to be explicit, he added to the grant of the village in inam the words 'including the waters, the trees, the stones, (including quarries) the mines, and the hidden treasures therein'. These observations were quoted with approval by Melvill, J. in Ramchandra v. Venkatrao 6 Bom. 598. In the subsequent case of Rajya v. Balkrishna Gangadhar 29 Bom. 415, Sir Lawrence Jenkins referred with approval to these two earlier decisions and observed that 'a grant to an inamdar may be either of the royal share of revenue, or the soil; but ordinarily it is of the former description. The burden rests on the inamdar to show that he is an alienee of the soil'. The validity of this proposition was also accepted by a Division Bench of the Bombay High Court consisting of Shah and Hayward JJ. in Amrit v. Hari 22 Bom. L.R. 275, and in that case Shah J. pointed out that 'the words ordinarily used to indicate a grant of the soil are 'water, grass, wood (trees), stones, mines and hidden treasures' as pointed out in Rowji Narayan v. Dadaji Bapuji 1 Bom. 523; The Collector of Ratnagiri v. Antaji Lakshman 12 Bom. 534 and Balvant Ramchandra v. Secretary of State 29 Bom. 480'.

5. Examining the language of the Sanad in the light of this principle of construction it is clear that the grant contained in the Sanad is not a grant of the soil. The Sanad no doubt says that the village Majigaon is conferred and settled upon the petitioner's ancestors and 'their Farzandan (offspring, progeny, sons, daughters, children) from generation to generation' but the words ordinarily used to indicate a grant of the soil, namely, 'water, grass, wood (trees), stones, mines and hidden treasures' are not to be found in the Sanad. There is nothing in the Sanad which indicates, expressly or by necessary implication, that the East India Company intended that the ownership in the soil should pass to the grantees. On the contrary the Sanad makes it clear that the ownership in the soil was not intended to pass to the grantees. The village Majigaon was conferred and settled upon the grantees 'as annuity' and the grantees were given the right to collect and appropriate the land revenue of the village 'for their subsistence. ' The grant is, therefore, clearly not a grant of the soil and the only question would be whether it is a grant of land revenue or a grant of partial exemption from payment of land revenue.

6. This question also in our view does not present any difficulty and is easy of solution. The language of the Sanad leaves no doubt that the grant is a grant of land revenue and not a grant of partial exemption from payment of land revenue. The Sanad shows that at the time of the grant Majigaon village was yielding an annual revenue of Rs. 2, 000/- and this revenue was being received by the East India Company from the occupants. The right to collect and appropriate this revenue was granted by the East India Company to the grantees in perpetuity 'from generation to generation' under the Sanad 'for their subsistence. ' The subject matter of the grant was land revenue of the village and the grantees were given the right to collect and appropriate 'for their subsistence' land revenue which was otherwise payable to the East India Company. The grant was intended to provide an 'annuity' for the maintenance of the grantees and their descendants from generation to generation and annuity was provided by granting the right to collect and appropriate land revenue of the village. The use of the word 'annuity' shows that what was granted by the Sanad was something to be realised by the grantees, something which would come into the hands of the grantees and provide an 'annuity. ' A mere exemption, total or partial, for payment of land revenue would not constitute an 'annuity. ' The grant must, therefore, on a plain natural construction of the language of the Sanad, be held to be a grant of land revenue less Rs. 6 per year payable by the grantees as quit rent.

7. The State, however, contended that this construction of the Sanad would not accord with the definition of 'Personal Inam' contained in Section 2(1)(e). The grant would not fall within Clause (ii) of Section 2(1)(e) because the conditions of that clause are not satisfied. There are two conditions which must be fulfilled in order to attract the applicability of Clause (ii). One is that the grant must be 'in respect of any right, privilege, perquisite or office' and the other is that the grant must be 'entered as Class I, II, III, IV or V in the records kept under the rules made under the Pensions Act, 1871.' Both the conditions are admittedly not fulfilled in the present case and the grant would, therefore, not be a personal inam within the meaning of Clause (ii). It must then be a personal inam within the meaning of Clause (i). Now the grant is entered as personal inam in the alienation register kept under Section 53 of the Bombay Land Revenue Code, 1879 and the condition set out in the last part of Clause (i) is satisfied. The grant must, therefore, argued the State, be either a grant of the village or a grant of total or partial exemption from payment of land revenue so as to satisfy the earlier part of Clause (i). Now, as pointed out above, the grant is clearly not a grant of the soil and, therefore, the grant must be held to be a grant of partial exemption from payment of land revenue. This was the line of reasoning adopted on behalf of the State in order to establish its thesis that the grant was a grant of partial exemption from payment of land revenue but we do not think it is well founded. It ignores the existence of Explanation II. We agree with the State that the grant with which we are concerned here does not fall within Clause (ii) of Section 2(1 )(e) as both the conditions of that clause are not satisfied but from that premise it does not follow that the grant must be either a grant of the village or a grant of partial exemption from payment of land revenue. Clause (i) of Section 2(1)(e) does undoubtedly refer to a grant of a village, portion of a village or land or grant of total or partial exemption from payment of land revenue but Explanation II brings within the scope and ambit of that clause another category of grants, namely, grant consisting of a share in the revenue of a village, portion of a village or land. Such a grant, if entered as personal inam in the alienation register kept under Section 53 of the Code, would be covered by Clause (i) of Section 2(1)(e) and for abolition of such grant the inamdar would be entitled to compensation computed in accordance with the provisions of Section 6A. The grant in the present case, on the view we have taken, consisted of a share in the revenue in the village, namely, the whole revenue minus Rs. 6 per year and was entered as personal inam in the alienation register kept under Section 53 of the Code. It was, there-fore, a personal inam within the meaning of Clause (i) of Section 2(1)(e) read' with Explanation II and the petitioner as Inamdar was entitled to compensation under Section 6A for abolition of his interest in the inam.

8. Considerable reliance was placed on behalf of the State on the decision of the Bombay High Court in Harshadrai v. Collector of Surat and Anr. : AIR1956Bom170 and it was urged that the Sanad in the present case being almost in identical terms as the Sanad in Harshadrai's case, we should hold, following the decision in Harshadrai's case, that the grant was a grant of partial exemption from payment of laud revenue. Now it is undoubtedly true that the grant in Harshadrai's case, was almost similar to the grant in the present case but we cannot read the decision in Harshadrai's case as laying down that such a grant would be a grant of exemption from payment of land revenue as distinguished from a grant of land revenue. The question which was raised on behalf of the petitioner in Harshadrai's case was as to what was the date on which his inam was extinguished. His argument was that the inam consisted of a grant of exemption from payment of land revenue and since the amount of exemption was less than Rs. 5,000/-, the inam was extinguished from 1st August 1955 and not from 1st August 1953 as provided in Section 4. Now if the inam was of exemption from payment of land revenue, it was on the facts indisputable that the grant of exemption was less than Rs. 5, 000/- and the inam would in that event be extinguished only from 1st August 1955 as contended by the petitioner. Realising this position, the Collector, when he came to make an affidavit in answer to the petition, took up an entirely different stand and his contention was that the inam was a grant of the soil and not a grant of exemption from payment of land revenue. The only point which the Bombay High Court was, therefore, called upon to consider was whether the inam was a grant of the soil and the Bombay High Court after examining the language of the Sanad came to the conclusion that the inam was not a grant of the soil. It is no doubt true that while dealing with this point the Bombay High Court observed that the inam was not a grant of the soil but was a grant of exemption from payment of land revenue, but it must be remembered that the Bombay High Court was not called upon to decide whether the inam was a grant of exemption from payment of land revenue as distinguished from a grant of land revenue. The only ground on which the petition was contested was that the inam was a grant of the soil and it was not canvassed on behalf of the State that in any event it was a grant of land revenue and not a grant of exemption from payment of land revenue.

9. The decision of the Bombay High Court cannot, therefore, be regarded as laying down that the grant under a Sanad such as the present one would be a grant of exemption from payment of land revenue as distinguished from a grant of land revenue. This decision does not, therefore, preclude us from taking the view that the grant in the present case is a grant of land revenue and not a grant of exemption from payment of land revenue.

10.We, therefore, allow the petition and make the rule absolute by issuing a writ quashing and setting aside the decision of the Revenue Tribunal. The matter will go back to the Revenue Tribunal and the Revenue Tribunal will decide the claim of the petitioner in accordance with law in the light of the observations contained in this judgment. The first respondent will pay the costs of the petition of the petitioner.


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