•955

Hans MUlltr of

Nurenburg ,,.

Suptrinten<knt) Presidency Jail, .

Calcutta. and otherS'

Bose J~

February 28

1302:

SUPREME COURT REPORTS. [1955]

that were raised in the petition were not seriously piessed and as. they are of no substance we need not discuss them. . The petition fails and is dismissed.

Petition dismissed.

l\MRIK SINGH v.

THE STATE OF PEPSU.

[S. K. 'DAS, BHAGWATI arid VENKATAAAMA AYYAJ!. JJ.)

" ' Criminal Procedure Code (Aci Vof 1898), s.-197(1)-Charge of ,.Jc criminal isappropriation against a public servant-Sanction for prosecution under s. 197(1) of the Code of Criminal .Procedure- W hen necessary-Whether every offence committed by a public servant or every act done. b~ -him while .performing .official duties requires sanction for prpsecution.

It -is not every offence •committed by a public servant that retjui-res sanction for prpsecu\i.t; n. under s . .197(1} of the Code of Criminal Proct; dure . nor. eveµ every act done by him while he is actually engaged in µie performanCe of his official duties; but if the act compla.ined. of : is direCtly concerned \vith his official duties so that, if queStionea, it c'ould b'e claimed to 'have been done by virtue ofthe office, then. san<; tion. would .be necessanr; and that would be so, irrespective of whether it \Vas, iri fact, a proper discharge of his duties, because that ,.Would re:illy be a ·matter Of defence on the merits, which would have to be investiga'.ted at the trial, and could not arise at the stage -of the grant ofsanction, which must precede the institution of the prosecution.

Whether sanction is necessary to Proseeute a .public servant on a charge of criminal .misappropriation, will depend qn whether the ..>- acts complained of hinge on }:iis duties as a public servant.

If they do, then sanction i_s requiste. But if they are uncoqnected with such duties, then nb. sanctin "is necessary._.. ' ·

Hori Ram Singh Y •. Emperor ([1939] F.C.R. 159), H. H. B, Gill

v. The King ([1948] L.R. 75 LA. 41), Albert. West Meads v. The King '([1948] 'L.R. 75 I.A. 185), Phaniniira Chandra v. The King (['I949J L.R::76 LA>lO); 'R. W:· Math'ams v. "State°<jf WestB.engal ([.1955]. .l S.C:R. 2'16~:artd Shreekttntiah Ramayya Munipalil v. The State of Bombay ([1955-].:J .s.C.R:- 117.7),. referr<; d to.'

CRIMINAL

APPELLATE JuR1smcTmN: Criri:iirial Appeal• No:48 of "195'11."'"' ... · "·· ··•""'"· ...

,:L.f

Appeal by Special Leave granted by the Supreme Court by its Order dated the 31st July 1953 from the Judgment and Order dated the 15th May 1953 of the High Court of Judicature for the State of Pepsu at Patiala in Criminal Appeal No. 140 of 1952 arising out of the Judgment and Order dated the 31st March 1952 of the Court of Magistrate 1st Class, Patiala in Challan Case No. 160/102 of 1951. fai Gopal Sethi, (Naunit Lal, with him) for the appellant.

N. S. Bindra, (Porus A .. Mehta and P. G. Gokhale, with him) for the respondent. 1955.

February 28. The Judgment. of the Court was delivered by

VENKATARAMA

AYYAR J.-The appellant was a Sub-Divisional Officer in the . Public Works , Department, Pepsu, and was, at the material dates, in charge of certain 'works at a place called Karhali. It was part of his duties .to disburse the wages to the work~ men employed in the works, and the procedure usualc ly followed was that he drew the amount required from the treasury, and paid. the same to the employees against their signatures or thumb-impressions in the monthly acquittance roll.

In the roll for April 1951, one Parma was mentioned as a . khalasi (menial servant), and a sum o~ Rs. 51 shown as paid to him for: .his wages, the payment being vouched. by thumbimpression.

The case .. of the prosecution was. that there was, in fact, no person of the name of. Parma, that the .. thumb-impression found in the , acquittance roll was. that of, the appellant himself, that he had included a fictitious name;· in tl; ie acquittance roll, with intent o himself draw the_ .amount, and that. by this expedient he had received,!~· -; S,~ , ap.d JJ?.isappropriated the same. . ·. .. '" , ........ ·. : , ,. , . . ..

The First-Class Magistrate "of Patiala; before whom the appellant was put up for trial;:. framed charges against him under section 465 of 'the ''Indian Penal

Code for forging the thumb-itnpressiori of Parma, and under' "sectidn t409 of tlie ln<c'!in Penal 'Co<le for trimina'f misappropi'i'ation • of"'Rs. 51, and' after' a 'full "trial,

Amrik Singh v.

TM State of PepsU:

.A.mrik Singli

v. ' TM State of P1ps1l

Venkatarama

Ayya> J.

1304 SUPREME1 CO, URT. REPO:(lTS~ [!955];

acquitted him. . He held on .. the eviqence • that,• ;'there w:is a khalasi Parma by name in the . service ·-0f . the accused at Kehtauli", and that. though .the. , t\11,1m, bimpression in the acquittance roll ,. was .that, .of .~_the appellant, the prosecution had. not established .. 1.that the amount drawn by him did. not .reach the hands. of Parma. Against this judgment, there wa5 . an .,, appeal. by the State to the High Court of Pepsu; whic; h held that proof that the. thumb; impresion., .in , the,, ac.quittance roll was that of the appellant was sufficient,. when taken along with .other circumstances, t6' e5fablish his gtiilt, and 'accordinglf convi'Ctecl . him 'both under section 465 ;µid section 409 . of the 'Indiirr''Periar Code. This appeal by special' leave is directed 'against this judgment. ' · · ':· ' In support of. the appeal it is argued by Mr.' Jai Gopal Sethi that theconviction of the appellant is illegal, as sanction had not been obtained under sec-· ti on 197 ( 1) of the Code of Criminal Procedure rfor"his prosec11tiorl, that the ev'idence on record. ·, is insllfficient to establish an.· offence either under section .465-ror section 409 of. the Indian Penal Code arrd that there 'having . been . an acquittal of the . appellant by the trial Magistrate, the materials on record did not justify a reversal of. that verdict by the appellate Couit. • ·· :·

The question of sanction under section 197 ( 1} of the Code of Criminal Procedure may be taken up fiii for consideration, as it goes to the root of the riitter.

The facts beaiing on this question are that there 'was an application . by the Department for . s.anction ' . to prosecute the . 'appellant for arr . offence . linaer sectiOn 409, and that, the Chief .. Secretary; Home Depaitfuent, sent . the ' communication; Exhibit PX, statirig thai: he had been "dire'cted ic>" convey sanction. ''of the .Goveriurient to his prosecution": In view of this, no question was raised before the trial Magistrate' 'or the High. Court that the prosecution was .bad for want of sanction. But after thtl : disposal . of the appl by th.e High Court, it was discovered that,. in. fact,, .there was np order of .the Government sanctioning the pre>- secution, and . that the . Chief Secretary had :committed

a mistake in sending the communica, tion,. Exhibit; PX.

' . ...

The position,· therefore; is that the prosecution . which has resulted in the conviction of the appellant. was initiated without ariysanction under section 197 ( 1) of the Code of· Criminal Procedure and if sanction under that section is necessary, as contended for by Mr, Sethi,. then the entire proceedings including the conviction must be quashed. According to the respondent, ·. however, the main charge against the appellant is under section 409, and no sanction is required . for a· prosecution under that section. The point for' decision is whether sanction under section ··197(1)' of the' Code of Criminal Procedure is necessary for prosecuting the appelLlllt under section 409.

Tliere has been considerable divergence of judicial opinion on the scope of section 197 ( 1) of the Code of Criminal Procedure.

The question . has latterly been the subject of consideration by the highest Courts in this country, and. by the Privy Council, and the position may now be taken to be fairly well-settled. Hori Ram Singh v. Emperor( ) is a decision of the Federal Court on the necessity for sanction under section 270 of the Government of India Act, 1935, whicli is similar in terms to section 197(1) of the Code of Criminal Procedure. The facts in that case were that a Sub- Assistant. Surgeon was charged under section 409 with having dishonestly , removed certain medicines from a hospital which was under his charge, to his own residence, and under section 477-A, with having failed . to enter them in the stock book. The sanction of the Government had not been obtained for the . prosecution under section 270 . of the Government of India Act, - and the point for decision was whether it was necessary. It was held that the charge under section 477-A required sanction,. as "the official capacity . is involved in the very act . complained of as . amounting to a crime"; but that no sanction was required for .a charge under section 409, because "the official capacity is material only in .connection with the 'entrustment' and .does. not necessarily enter into the later act of misappropriation or conversion, which is the act complained of".

(l) [1939] F.C.R. 159.

,1955

Amrik Singh

v. .

Thi State of Ptf.'u

Venkataraina

4Jiyar J.

Amr.ik_Sigh

The State of P-.epsu

, v enkatarama

Ayyar .J.

 fo the course of his judgment, Varadachariar, J. discussed , the sc0:pe of section 197 (I) of the Code of Criminal Procedur.e and after observing that the deci- sions on that section were not uniform, proceeded to group them under three categories-those which had .held that sanction w.as necessary when the act complained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which .the official character of the person gave him an opportunity for the .commission of the crime, and those which had held it necessary when the offence was committed while the - accused was actual! y engaged in the performance of official duties.

The learned Judge expressed his "\greement with the first of the three views.

In H. H.B. Gill v. The King(1),.the question arose directly with reference to section 197 ( 1) of the Code of Criminal Procedure. There, the accused was charged under section 161 with taking bribes, and under section 120-B with .conspiracy. On the question whether sanction was necessary under section 197 ( l) it was held 'by the Privy Council that there was no difference in scope between that section and section 270 of .the Government of India Act, 1935, and approving the statement of the law by V:aradachariar, J. in Hori Ram Singh v. Emperor.('), Lord Simonds observed: ·

"A public servant can Gnly be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within .the scope of his official duty ........ The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".

It was accordingly held that as the acts with which the accused was charged could not be justified as done by virtue of his office, no sanction was necessary.

The view taken in H. H. B. Gill v. The King( ) was followed by the Privy Council in Albert West Meads v.

The King('), and reaffirmed in Phanindra Chandra v.

(I) [1948] L.R. ·;5 I.A. 41.

(2) [1939] F.C.R. 159.

(3) [1948] L.R. 75 I. A. 185. "

"--":

The King( 1), and adopted by this . Court m R. W.

Mathams v. State of West Bengal( 2).

The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is. directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.

It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under section 465, as the charge was in respect of his duty of obtaining signatures or thumb-impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could, under no circumstances, be said to .be within the scope of the duties of a public servant, that he could not,. when charged with it, claim justification for it by virtue of his office, that therefore no sanction under section 197 ( 1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor( 3 ) and Albert

We; t Meads v. The King( 4 ), in both of which the charges were of criminal misappropriation.

We are of opinion that this is too broad a statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under secti@n 197{1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attach-

(!) [1949] L.R. 76 I.A. 10.

(2) [1955] 1 S.C.R 216.

(3) [1939] F.C.R. 159.

(4) {1948] L.R. 75 I. A. 185.

Amrik Singh

The State of Pepsu

Venkatarama

Ayyar J.

. 1955

Amrik Singh . v.

The State of Pepsu

Venkatarama

Ayyar J.

ing to the office as to be inseparable from them, then sanction under section 197(1) would be necessary; but if there Was no necessarv connection beween them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.

Quite recently, this Court had to consider in Shreekantiah Ramayya Munipalli v. The State of Bombay(') the necessity for sanction under section 197 ( 1), when the charge was one of misappropriation under section

409. There, the law was laid down in the following terms:

"The section has content and its language must be given meaning. What it says i5-"

'when any public servant. , ...... is accused of any . offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty .......... ' We have therefore first to concentrate on the word

offence'.

Now an offence seldom consists of a single act.

It ls usually composed of several elements and, as a 'rule, a whole series of acts must be proved before it can be established.

In the present case, the elements alleged against the second accused are, first, that there was an 'entrusttnent' . and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disp0sal'; and fourth, . that the disposal was 'dishonest'. Now it is evident that the entrusttnent and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity".

On the facts, it was held in that case that the several acts which were complained of, were official acts, and that the prosecution was bad for want of sanction.

The decisions in Hori Ram Singh v. Emperor('), and Albert West Meads v. The King( ) when properly examined, do not support the extreme contention

(1) [1955] l s.c.R. 1177.

(2) [1939] F.C.R. 159. ·

 (3) [1948] L.R. 75 I.A. 185.

., .

' ( y

urged on behalf of the respondent. In Hori Ram Singh

v. Emperor(1), the medicines had not been entered in the stock book, and were removed by the accused to his . residence, and the charge against him was that in so removing them he had committed misapproprfation. It was no part of the duty of the _accused to remove medicines to his house,, and he could not claim that he did so by virtue. of his office.

He could have made such a claim if he had, let us suppose, entered the medicines in the stock books and shown them as expended in the hospital. But, on the facts, no official act was involved, and that was why Varadachariar, J .. observed that,

" .... so far as the charge under section 409 was concerned; the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty".

Reference may also be made to the following observations of Sulaiman, J. in the same case :

"The question whether a criminal breach of trust can be committed while purporting to act in execution of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalized way has been responsible for loose language used in some of the cases cited before us. . . . . . . . The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case".

In Albert West Meads v. The King (2), an Army Officer had received two sums of money, and was subsequently unable to produce them. He was charged with criminal misappropriation, and convicted.

He contended that the conviction was iilegal for want of sanction, but the Privy Council, following H. H. B.

Gill v. The King( 3 ), rejected this contention. It is essential to note that the accused did not claim to have spent the amount in the course of his official duties, but stated. that the moneys had been consumed by fire~ It is with reference to these facts that the Privy Council observed :

(1) [1939] F.C.R. 159.

(2) [1948] L.R. 75 I, A. 185.

(3) [1948] L.R. 75 I.A. 41. 9-90 S. C, India/59

Amrik Singh v.

Thi State of Pepsu

V 1nkatarama

Ayyar J.

Amrik Singh . ' v.

The Stfl!~ !![ Pepsu

Venka_tarama

Ayyar J.

" .. :.the appellant 'could not justify the .acts in respect of which he was charged', i.e. acts. of frauduleritly misapplying money entrusted to his .care as a public servant, 'as acts done by him by virtue of the office that he held"'.

The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant.

If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary: In this view, we have to examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant received the sum of Rs. 51 alleged to have been misappropriated, as Sub- Divisional Officer, and he admits receipt of the same.

Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-impression in acknowle<lgment thereof.

The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgment thereof a thumb-impression as against. his name. If what appears on the face of the roll is true-and whether it is true or not is not a matter relevant at the stage of sanction-then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office.

Clearly, therefore, sanction was required under section 197 ( 1) of 'the Code of Criminal Procedure before the appellant could be prosecuted under section 409, and the absence of such .sanction is fatal to the maintainability of the prosecution.

The conviction should, therefore, be quashed.

In this view, there is no need to consider whether on the evidence, : the offence of criminal misappropriation or forgery has been brought home to the· appellant or not.

The appeal is accordingly allowed; and the' c'c; mvictions and sentences passed on the appellant are set aside. 'Fine,.' if paid, will be refunded. · ' · ' : 'Appeal allowed. ' !

\ .

......

l\MRIK SINGH

THE STATE OF PEPSU

S. K. 'DAS

BHAGWATI

Criminal Procedure Code

s. 197(1)

Hori Ram Singh

[1939] F.C.R. 159

L.R. 75 I.A. 185

Naunit Lal

N. S. Bindra

Porus A .. Mehta

P. G. Gokhale

VENKATARAMA

AYYAR

Parma

First-Class Magistrate "of Patiala

section 465

Code

.A.mrik Singli

Parma

High Court of Pepsu

section 465

section 409

Jai Gopal Sethi

Code of Criminal Procedure

section 409

Indian Penal Code

section 197

Code of Criminal Procedure

section 197

Sethi

section 409

Code of Criminal Procedure

section 409

section 197

Code of Criminal Procedure

section 270

Government of India Act, 1935

section 197(1)

Code of Criminal Procedure

section 409

section 477

section 270

section 477

section 409

[1939] F.C.R. 159

Amrik Singh

State of Ptf.'u

Venkataraina

Varadachariar

section 197

section 197

Code of Criminal Procedure

section 161

section 120

section 197

section 270

Government of India Act, 1935

aradachariar

Simonds

[1939] F.C.R. 159

L.R. 75 I. A. 185

section 197(1)

Code of Criminal Procedure

section 465

section 197

L.R. 76 I.A. 10

[1955] 1 S.C.R 216

[1939] F.C.R. 159

L.R. 75 I. A. 185

State of Pepsu

section 197(1)

section 197

section

409

[1939] F.C.R. 159

L.R. 75 I.A. 185

section 409

Sulaiman

[1939] F.C.R. 159

L.R. 75 I.A. 41

khalasi Parma

section 197

Code of Criminal Procedure

section 409


. (

v .

S.C.R.

SUPREME COURT REPORTS 1311

 THE COLLECTOR OF BOMBAY ... ) . . . ,, . .. . .

. "·

NUSSERWANJLRATTANJI MISTRI & OTHERS .. . '

(VIVIAN BosE,

}AGANNADHADAS,

VENKATARAMA AYYAR and SINHA JJ.] ·

Land revenue-Assessment-Right of Government to levy-Foras tenure-Incidents-Foras Land Act (Bombay Act VI of 1851), s. 2- Land Acquisition, effect of-Land Acquisition Act (VI of 1857), s. 8 -Crown Grants Act (XV of 1857), s. 3-Scope of-Bombay City Land Revenue Act (Bombay Act II of 1876).

In the island of Bombay certain lands were held on a tenure known as "Foras".

Under s. 2 of Bombay Act VI of 1851 the occupants were entitled to hold the lands subject only to the payment of revenue .then payable. Between 1864 and 1867 the Government of India acquired these lands under the provisions of the Land Acquisition Act (VI of 1857). On 22-11-1938 the Governor-General sold them to certain persons under whom the present respondents claimed. In April 1942 the appellant acting under the Bombay City Land Revenue Act (Bombay Act II of 1876) issued notices to the respondents proposing to levy assessment on the lands at the rates mentioned therein.

The respondents thereupon instituted two suits disputing the right of the appellant to assess the lands to revenue.

They contended that under the Foras Land Act the occupants had acquired the right to hold the lands on payment of revenue not exceeding what was then payable, that the right to. levy even that asseessment was extinguished when the Government acquired the !_ands under the Land Acquisition Act, that the Governor-General having conveyed the lands absolutely under the sale deed dated 22-11-1938 the respondents were entitled to hold them revenue-free and that even if revenue was payable it could not exceed what was payable under the Foras Land Act.

Held, (i) that under the Foras Land Act (VI of 1851) the occupants of Foras lands acquired a specific right to. hold th.em on payment of assessment not exceeding what was then payable.

(ii) that the right of the Government to levy assessment was not the. 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 them absolutely in the Government. · ·

(iii) that where there is an absoiute sale by the Crow1.1 it does not necessarily import that the fand' Js conveyed revenuefree: ·

The question 1s one of construction of the grant. The rule is that a grantee from the Crown gets only what is granted by the

February 28

1?:55: The cOl; e-clOr.of

'Bombaj, ·

Nusserwanji Rattanj1° Mistri and others

deed and nothing. passes by_ implication.

When the grant is em bodied in a deed the question Ultimately reduces itself to a detern1i nation of what was granted therronder.

Section 3 of the Cro\vn Grants Act (XV of 1895) that "all provisions,. restrictions,- conditions and limitations over shall' take effect according to their tenor" does not app}y when the question is as to the liability to pay revenue.

(i~) that the Foras tenure became extinguished when the lands were acquired under the Land Acquisition proceedings and it was incapable of coming back to life \vhen the lands were sold on 22·11-1938 and_ the respondents cannot claim a right tO pay assess~ ment only at the rate at Which it was payable under the Foras Land Act.

Goswamini Shri Kamala Vahooji v. Collector of Bombay ([1937] L.R. 64 I.A. 334), Shapurji fivanji v. The Collector of Bombay {[1885] l.L.R.- 9 Bom. 483, 488), Naoroji Beramji v. Rogers (4 Born.

H.C.R. l), Deputy Collector, Calicut Division v. Aiyavu Pillay {[1911] 9 I.C. 341), Dadoba v. Collector of Bombay {[!901] I.L.R. 25 Bom. 714), Thakur fagannath Baksh Singh v. The United Provinces

{[1946] F.L.J. 88) and Collector of Bombay v.' Municipal Corporation of the City of Bombay and others ([1952] S.C.R. 43), referred to.

CIVIL

AP PELLA TE No. 74 of 1952.

JURISDICTION : Civil Appeal

Appeal by Special Leave from the Judgment and Decree dated the 10th November 1948 of the High Court of Judicature at Bombay in Appeal from Original Decree No. 274 of 1945 arising out of the decree dated the 17th March 1945 of the Court of Revenue Judge, Bombay in Suits Nos. 7 and 23 of 1943.

C. K. Daphtary, Solicitor-General for India (Porus A. Mehta, with him), for the appellant.

M. C.

Setalvad, Attorney-General for India and farnshedji Kanga, (R. J. Kolah and Rajinder Narain, with them), for the respondents.

1955. Febary 28.

The Judgment of the Court was deli.vered by

VENKATARAMA AYYAR J.-The point for decision in this appeal is as to the liability of certain lands situated within the City of Bombay to be assessed to revenue under the Bombay City Land Revenue Act No. II of 1876. These lands were originally known as Foras lands, and the rights. of the occupants of

' . ...,

$.C.R.

SUPREME COURT REPQRTS 1313

those lands were settled by . Bombay Act No .. VI of 1851, called the Foras Act.' What these rights are, is a matter in controversy between the parties, and will be presently considered. Between 1864 and 1867 the Government acquired the_se lands for the purpose of the B.B.C.I. Railway, under the provisions of Land Acquisition Act No. VI of 1857. On 22-11-1938 these lands, being no longer required for the purpose of the Railway, were sold by the GovernorcGeneral to Lady Pochk.hanawalla and others as joint tenants under a deed, Exhibit A. On 28-3-1939 the survivor of the purchasers under Exhibit A conveyed the lands in trust under Exhibit B, and the respondents are the

trustees appointed under that deed.

In April 1942 the appellant acting under the provisions of Bombay Act No. II of 1876, issued notices to the respondents proposing to ievy assessment on the lands at the rates mentioned . therein, and calling for their representation.

In their reply, the respondents denied the right 9f the appellant to assess . the lands to revenue, and followed it up by instituting two suits before the Revenue Judge for establishing their rights.· In their plaints, they alleged that under the provisions of the Foras Act the maximum assessment leviable on the lands was 9 reas per burga, and that the Government had no right to enhance it; that the effect of the land acquisition proceedings between 1864 and 1867 was to extinguish the right of the State to levy even this assesssment, and that further, having purchased the properties absolutely from the Governor-General under Exhibit A, they were entitle to hold them without any liability to pay revenue thereon, They accordingly prayed for a declaration that the Government had no right to levy any assessment on these lands, or, in . the alternative, that such assessmerit should not exceed what was payable under Bombay Act No. VI of 1851.

The .. appellant contested the suit. The Revenue: Judge held that as a result . of the land acquisition proceedings between 1864 and 1867, the Jands vested .in the. Government freed froni any 1iabi4ty to pay assessment, .and that"

when the Governor-General transferred them under

19s:r

Tht Collector of Bombay v.

N usserwanji Rattaryi Mistri

ana others

V1nkatarama

A.J:7DT J.

1955. -·-·.

The .Collector ef

Bombay v.

Nusstrl.QtJ11ji RattanJi Mistri

and others

V enkatarama

Ayyar J.

Exhibit A withount reserving the . right to assess them, the purchasers . had the right to hold them without any liability to pay revenue. He accordingly. granted a declaration . that the appellant. had no right to levy assessment, and that. the notices issued . by him under Act No. II of 1876 were . illegal. On appeal by the defendants to the High Court of Bombay, it was h.eld by Chagla, C.J., Bhagwati, J. concurring, that Act No.

VI of 1851 imposed a specific limit on the right_ of the Governm.ent to 'levy assessments on the lands. il). question, th<1t, . further, by reason of the land acquisition proceedings the right of , the Provincial Government to levy assessment even within the limits prescribed by Act No. VI of 1851 was extinguished,. and that when the lands were transferred by the Central Government to Lady Pochklianaw; illa and dthers, they got them as revenue-free lands." In the result, the appeal was dismissed.

This appeal by special leave is directed against this decision. . · · The .statutory authority under which th~ appellant seeks to 'Jevy assessme11t on_. th, e lands. is .. ction .. 8 of

BombayA, t :N~; II of 1876, and it is as follows:. ...

"It .. s~'!ll . be .. the. duty. of the. Collector, subject to the orders of Government, . to fix a11d .. to kvv. the. as-. sessmeni for. land. revemie ..

. When there is no right on the part of •the 'superior holder . in limitation of . the right of : Government"' to assess;' the assessment shall be fixed . at " the discretion of the Collectorsubject to the.• control of,:Government.

When 'there is a right on the:· 'part of fhe' siiprfor holder itt • limitation of the right of Government, in consequence of a . specific . %nit .. fo as"sessmeni' 'having been established and preserved, the assessment" shall not exceed such specific lirrii.t"~ ". ' .. It "Ya~ n .. ie' J0>ting'. ~t h~ '.; espp)lden~~ ,'.,\Yer' 'sup<; t'tor holders as 'defined .m the , Act, th:il. the appellaf'; is_s'ff~.1'ntie~ to. the.¥:, in;: April )942: ID, iejr

reply Iibt1ces ·.and in the plamts, the . respondents ,,.did not atS]S'ute:'ihaf-1xisiti1; m; _Bii(ortly s\inten4eci in teqgs of s'ectib'n' 's' that tney' had a :sp~ifi'~', rigP, C in," mita ti1irt" of"'fhe; 'Tight''' of the' I Goverr, iilient to'' ~;;~ ; the .

. '.i,1 1 ,~ ~!!_";,_fr~ i;-:-;·;7•,-111 ?-: 11.-~:1""'l.~ •. -,, r, ~-:, I•".' '":·!'

' r ,,

land; and the entire controversy in the Courts below was whether - they had istablished that right; No contention was raised that they were not superior holders as defined in the Act, and that, in_ consequence, no assessment could be imposed on the lands under section 8 of the Act.

In the argument before us, the contention was sought to be raised -for the first time by the learned Attorney-General that the proceedings taken by the Collector under section 8 were incompetent, as that section would apply only to lands held by superior holders, that the definition of 'superior holder' in section 3( 4) as meaning "the person having the_ highest title under the Provincial Government to any land in the City of Bombay" would take in only per.Sons who held on a derivative tenure from the Government, that persons who acquired lands from the Government under an outright sale could no_t be described as 'superior holders' within section 3( 4), and that the lands held by the respondents were therefore outside the operation of section ~8. -

On behalf _of the appellant, the learned Solicitor- General objected to this question being allowed to_ be raised at this stage of the proceedings, as. that would involve investigation of questions of fact and -of lw, such as whether under the tenures in the City ·-_ of Bombay, .owners held the lands_ as superior hold_ers, whether pnCler Indian jurisprudence what was paid by the occupier of land _w.as rent or .revenue, whether the prerogative. right of the Crown to assess lands subsisted in the Presidency Towns of Calcutta,_ Bombay .- and Madras and several other questions, for the decision -of which there - were not sufficient - materials.

This objectionmust be upheld. In view of the fact that the. respondents have, at all stages~ claimed immunity from assessment on the basis of section 8,. _we do not, consider that. it would be proper to -allow them now to, change their front, and, take up a snd wh91ly inconsistel).t with , what they _had taken, when., that)nvolves an ~Q._vs_tigaion, into factS - which _h~~--nt. ben made._ We_. must, •. therefore, _ proceed __ on . the footing that the respondents are 'superior holders; -as ~Clfiiied ·-·- _-·- .1 ... ·;1_..:.··; j•

-1955

The Col/ctor oj

._Bombay _v. -Jv usserwanji Rattanji Mi.rt.ri and others

Venkatarama

.Ayyar J.

The Collector Of

Bombay

V.

Nusierwatlji Ratta'!ii Mistri

and others

Venkalarama

A.yyar j.

in section 3( 4) of Act No. II of 1876, and that their rights are to be determined in accordance with section 8 of the Act.

Construing that section, the Privy Council laid down in Goswamini Shri Kamala Vahooji v. Collector of 'Bombay( 1 ) two propositions : that though the language of the section would more appropriately apply when the -, dispute was as to the quantum of assessment, the right to levy it not being itself controverted, it was open to the superior holder under this section 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 of the State to assess, to clearly and unequivocally establish it.

It is, therefore, open to . the respondents to plead that the lands are wholly exempt from revenue; bur the onus of making it out lies heavily on them.

The learned Attorney-General has . sought to estab. lish a right in the respondents in limitation of the right of the appellant to :issess .the lands on three grounds: (l) the Foras Act No. VI of 1851, (2) the land acquistion proceedings under Act No. VI of 1857, and (3) the; sale deed, Exhibit A. Taking first "-' the Foras Act: For a correct appreCiation of its prc>- visions, it is necessary 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. In 1661 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 a Royal Charter dated 27th March 1668 King Charles II granted it >- to the East India 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 and marsh which becarrie a group. of islands every day ' on high tidt" .. Vide Shapurji Jivimji v.

The .Collector of. Bombay('). It appears 'from War- . den's Report 011 the Landed Tenure• . In. Bombay and

1..e. Mesuri~'s Report on the Fo~:is lando, that dur'- ing . the Hlth ntury .the East India . Company starte, d " "'

(I) [1937) L.R. 64 I.A. 334.

(2) [1885) I.L.R. 9 Bom. 483,488.

' I

reclaiming these lands, and invited the inhabitants to cultivate , them, at first without payment of any assessment and subsequently on favourable rates.

These payments were called "Foras". The meaning of this word is thus explained by Westropp, J. in his note at page 40 in Naoroji Beramji v. Rogers(1) :-

" 'Foras' is derived from the Portuguese word 'fora', (Latine foras, from foris a door), signifying outside.

It here indicates the rent or revenue derived from outlying lands.

The whole island of Bombay fell under that denomination when under Portuguese rule, being then a mere outlying dependency of Bassein. Subsequently the term foras was, for the most part, though perhaps not quite exclusively, limited to the new salt batty ground reclaimed from the sea, or other waste ground lying outside the Fort, Native Town, and other the more ancient settled and cultivated grounds in the island, or to the quitrent arising. from that new salt battjr ground and .outlying ground".

Thus, the salt batty lands reclaimed from the sea came to be known as Foras lands by association with the assessments payable thereon called "Foras": The nature .of the interest which the occupants had in the Foras lands was the subject of considerable. debate in the beginning of the 19th Century. In 1804, the Company resumed some of the Foras lands for settling persons displaced in the Town area, and that resulted in a suit by one Sheik Abdul Ambly, wherein the right of the Company to resume the lands was challenged. The action failed, the Court upholding the claim .of the Company to resume them, but at the same time, it observed that its action in dispossessing the occupants would "appear and be fdt as a grievous hardship, if not an open and downright injury". Vide Warden's Report on the Landed Tenures of Bombay, pages 60 and 61. Thereafter, the Company had the matter further investigated, and there were reports on the subject by Warden in 1814 and Le Mesurier in 1843.

And finally the Company decided to reeognise

'i955

The Collector of Bombay

v; . Nusserwanji Rattanji Mistri

and others

Ve'n:katCiramcln

Ayjar J.

The Collector of

Bombay ,,, Nusserwa, Yi Rattanji Mistri and others

V tnkatarama

AY.Y"r ],

1318 SUPREME coURT REPORTS

[1955.J

the rights Of the occupants, and. that resulted in. the enactment of. Act SI of. 1851. . _ The 'relevant provisions of the. Act may now be noticed. The preamble to the Act states that,

"Whereas the East India Company are legally entitled to the freehold reversion of the several lands heretofore paying a render called foras, the outline whereof is delineated in a plan ........ and numbered 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 of the said East India Company in all of the lands included in the said plan,. .. .... should be extinguished, save . as. hereinafter mentioned. It iL enacted as follows :" Section 2 enacts tha.t : .

"From and -after -the said 1st day of July, the rights of the. said Company in all of the said lands mentioned in the said plan No. 1, except those men" tioned. in the said plan No. 2, shall be extinguished in favour of the persons who shall then hold the same respectively-. as the immediate rent-payers to the said.

Company,. -saving the. rents now severally payable .in respect of .. such lands, which shall continue. payable and recoverable by distress, or by any means by which land .revenue in Bombay is or shall be recoverable, under any .Act or Regtilation .... -'.- .. " ....

Section 4 provides-: . · ·· . "Nothing . herein contained shall exempt such lands from , being . liable to any further general taxes on land in' Bombay ....... "·"

According to the appellant, the effect of these provisions was to grant. the lands to the occupants.· on a permanent ... tenure, . heritable and alienable, • .but not further, to • grant - them on. a permanent assessment.

Reliance was also placed on the decision in Shapurjt /ivanji.•v. The. Collector of Bombay('), where it was held genem!ly that., the Government had the• .right. under section 8.·. of the -Act to enhance the assessments: "on Foras lands. - There is some -support for .. :this contention, .juthe provisions. ·of : the Act., The •• preamble

--.-~}-; ·,,,.,---.- -.,,,, . ' ·-

expressly recites that th-e occupants were tenants at will or from year to year, and that the reversion was with the East India Company. One consequence of that was that the Company had the right to eject the occupants.- -Now, what the Company 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 settle on the lands and cultivate them, and it did that.by extinguishing its reversion as landlord .. In other words, it agreed to confer on the tenants the status of owners oflands. If that was all the scope of Act No. VI of 1851, it could not be doubted that the rights of the State to_ enhance. the assessments would not be affected, because ownership of land does not per se carry _with it an immunity from enhancement of assessment in exercise of sovereign rights, apd occupants ofForas lands cannot claim to be in a better position by reason of the Act than owners of lands in ryotwari tracts, the assess- - men ts on which are liable to periodic revision. But what is against the appellant is that section 2 does not stop with merely extinguishing the reversionary rights of the Company. It goes further, and saves expressly "the rents now severally payable in respect of such lands", rent being used here in the sense of assessment, and adds "which shall :continue to be payable". Now, the contention of the respondents is that those .words conferred on the Government a right to recover only the assessment which was then payable, and that there was thus a limitation on its right to enhance it. It is common ground that the assessment payable on these lands at that time was 9 reas per burga, and Exhibit N shows that it was at that rate that the assessment was collected from 1858 until the lands were acquired by the Government in land acquisition proceedings. It is accordingly contended for the respondents that under the Act, the Government could not claim anything more. than 9 reas per burga as assessment on the lands. It is urged for the appellant that the words "now severally payable" could not be construed as impos- . lW

The Collector of

Bombay

v. l•tusseruanji Rattanji Aiistri

and others

Venkatarama

Ayyar J.

The Collector oj

Bo111ay

Vo NU!strwanji Rattilnji Mistri and others -··-· Venkatartima Ayya' J.

ing a limitation on the right of the Government to enhance the assessment, as they occur in ' a ' saving clause, the scope of which was to reserve . the' rights of the Company and not to corifer on the occupants rights in addition . to what the body of the section had granted to them. It is true that the S<:tting in which these words occur is more appropriate for reserving rights in favour of the Company than for declaring any in favour of the occupants. But to adopt the construction 'contended '' for by 'the' appellant ' would be to render the words ''now' severally 'payable"' and "which shall co'ntinue to be payable;" wholly meaningless.

Notwithstanding that the drafting is inartistic, the true import of the clause unmistakably is that while, on the one hand, the right of the Government to recover the assessment is saved, it 'is, on the other hand, limited to the amount then · payable by the occupants; The contention of the respondents that under the Foras Act they acquired a specific right to hol, d the lands on ' payment of assessment not exceedin'g what was then payab.le, must, 'therefore, be accepted~ ··· ·" , . .

We have next to decide what effect the proceedings taken by the Government under. the. Land Acquisition Act No. VI of 1857 during the years 1864 to 1867 have 'on the rights of the parties. Section VIII of the Act is as follows : ·

"Whe~ the Ccillector or other officr has , made an award or . directed a reference to . arbitration,. he may take immediate. possessiqn. of the. land. which shall thenceforward be vested absolutely . 'in , the Government, , free from all other ' estates, rights, titles. and interests". The' <:Ontention of' the respondents "which" has found favour with the Courts. below is that under that section the effect of the vesting of the 'lands in the Government was to extinguih whatever' interests:· were previously held over them, that the. right"'of ·the Government t<i levy assessment was such an interest, and that it was also extinguished .. It is ar'1\led that when. lands. are acquired un.der. the, 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 interests of the claimants therein, that what is paid to the owners . is not the full value of the lands but the value . of.their interests therein, deduction being made of . the value of the right of the Government to assess from out of the full value, and .that, in effect, there was an ; iward of compensation for the right to assess, and that, therefore, that right equally with the rights of the claimants. over the lands would be extinguished. One pf the awards has been marked as Exhibit J>, and the respondents rely on the recitals therein that the compensation to the claimants was "for their interest in the said lands". The award, it must be mentioned, directs the Government to pay the claimants the amounts specified therein, but contains no provision for payment of 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 the Government being the authority to pay must be deemed to have paid itself, and that, in any event, if they were entitled to

compensation, their failure to claim it could not affect the result, which was that the right to levy assessment would be extinguished.

We are unable to accept this contention. When the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. If the Govern ment has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user.

In In the Matter of the Land Acquisition Act: The Government of Bombay. v. Esupali Salebhai(1) Batchelor, J. observed :

"In other words Government, as it seems to me, -are not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compen-

.i.9s_~

Tht Collector ef

Bombay v .. . Nusserwanj'i

Rattanji Mistri and others v enkataraman

Ayyer J.

The Collector of Bombay

Nussrrwanji Rattanji Mistri

and other'

Venkatarama

, dyyar J. ·

1322 STiJP.RiEME CG>GRT REPORTS [1955]

sation based upon the market value of the whole land, .must be distributed •among. the dainiants". ,_,,;: • - There,. 'the <;:overnment 'c!ainied ownership 'ofthe'land on whith there - stciod buildings '-belonging' to the claimants,' and it was lleld that the Government was boilnd to acquire -and pay only for the superstructure, as it was already• the owner of the site:· Similarly in Deputy Collector, Calicut' Division v. Aiyai1u Pi/lay('), Wallis, J. (as he - then was) observed :

"It is, in my opinion, -clear that the Acf does not contemplate or provide for the acquisition of any interest which already belongs -to Government in land which is being acquired under the Act,' but only for the acquisition of such interests in the land as 'do not already belong to the' Government".

With these observations, we are in entire agreement.

When Government possesses an interest in land which is the subject of -acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition.

The language of section VIII of Act No. VI of 1857 also _ supports this _construction. Under that section, the lands _vest in the Government "free from all other estates, rights, titles and interests", which must -clearly mean other than those possessed by the Government.

It ' is on this understanding of the section that the award, Exhibit P, is framed. The scheme of it is that the interests of the occupants are ascertained and valued, and the Gov.ernment isdirected to pay the compensation fixed for them. There is no valuation of the right of the Government to levy assessment on the lands, and there is no award of compensation therefor.

We have so far assumed with the re.spondents' that the right of the Government to levy assessment is an interest . in land within the -meaning of sec(ion VIII

(1) [1911] 9 I. C. 341.

' I-

-.,

. , ...

SUPREME COUKf REPORTS 1323

of Act VI of 1857. But is thi~ ·.assumption well~ founded? We think not. In its normal acceptation, "interest" means one or more of those rights ·. which go to make up "ownership". It will include for example, mortgage, lease, charge, easement . and the like, but the right to impose a tax on land is a prerogative right of the Crown, paramount to the ownership over the land and outside it. Under the scheme of ·the Land Acquisition Act, what is acquired is only the ownership over the lands, or the inferior rights comprised therein. Section 3 (b) of the Land Acquisition Act No. I of 1894 defines a "person interested"

as including "all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land". Section 9 requires that notices should be given to all persons who are interested in the land.

Under section 11, the Collector has to value the land, and apportion the compensation among 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 which shall thereupon vest absolutely in the Government free from all encumbrance". The word "encumbrance" in this section can only mean interests in respect of which a compensation was made . under section 11, or could have been claimed. It cannot include the right of the Government to levy assessment on the lands. The Government is not a "person interested" within the definition in section 3(b), and, as already stated, the Act does not contemplate its interest being valued or compensation being awarded therefor.

It is true that there is in Act No. VI of 1957 nothing corresponding to section 3(b) of Act No. I of 1894, but an examination of the provisions Act No. VI of 1857 clearly shows that the subject-matter of acquisition under that Act was only ownership over the lands or its constituept rights and not the right of the Government to levy assessmeflt.

The provisions relating to the issue of notices to, pei;-sons . interested

The Collector of Bombay v.

Nusstrwanji Rattanji Mistri

ana others

Venkatarama

Ayyar J.

•955

T ht Coll.tctor of

 Bombay

Nasserwanji.

RattanJi Minri

and others

Venkatatamli

Ayyar J.

and. the apportionment of compensation among them are substantially the same. Moreover, under .section VIII the Government is to take the lands free . from - all other "estates, rights, title and interest", and "interest'; must, in the context, be construed eiusdem generis with "estates" etc., as meaning right over lands, of the character of, but not amounting to an estate, and cannot include the prerogative right to assess the lands. It must accordingly be held that the effect of the land acquisition proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Government, that the right of the latter to levy assessment was not -the subject-matter of those proceedings; 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 assessment on its own lands.

Then there remains the question whether the sale deed, :£xhibit A, imposes any limitation on the right of the Crown to assess the lands. The deed conveys the lands to the puchasers absolutely "with all rights, easements and appurtenances whatsoever" to be held "for ever';. It does not, however recite that they are to be held revenue-free. But it is argued for 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 3 of the Crown Grants Act No. XV of 1895 and certain observations in Dadoba v. Collector of Bombay(') were relied on as supporting this contention. Section 3 of Act No. XV of 1895 is as follows:

' . --,,

"All provisions, restrictions, conditions and limi- >- tations over contained in any such grant or transfer as aforesaid shall be valid and take affect according to their tenor any rule of law, statute or enactment of the Legislarure to the contrary notwithstanding".

The contention is that as the grant is of a freehold estate without any reservation it must, to take effect according to its tenor, be construed as granting exemption from assessment to revenue. But that will be extending the bounds of section 3 beyond its con- •

' ,

) .

tents. The object of the Act as declared m the preamble is to remove certain doubts "as to the extent and operation of the Transfer of Property Act, 1882, and, as to the power of the Crown to impose limitations and restrictions upon grants and other transfers. of land made by it or under its authority".

Section 2 enacts that the provisions of the Transfer of Property. Act do not apply to Crown grants. Then follows section 3 with a positive declaration that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor. Reading the enactment as a whole, the scope of section 3 is that it saves "provisions, restrictions, conditions and limitations over" which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyi; nent repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like.

But no question arises here as to th.e validity of any provision, restriction, condition, or limitation over, contained in Exhibit A on the ground that it is in contravention of any of the provisions of the Transfer of Property Act, and there is accordingly nothing on which section 3 could take effect.

It is argued by the learned Attorney-General that this limitation on the scope of the Act applies in terms only to section 2, and that section 3 goes much further, and is general and unqualified in its operation. The scope of section 3 came up for consideration before the Privy Council in Thakur Jagannath Baksh Singh v. The United Provinces (1). After setting out that section, Lord Wright observed: ·

"These general words cannot be read in their apparent generality. The whole Act was intended to settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be read with reference to the general context ........ "

In this view, section 3 must also be construed in the light of the preamble, and so construed, it cannot, for the reasons already given, have any bearing on

(I) 1946 F. L. J. 88. 10-90 S. C. India/59

The Collector of

(~'.S!:, Bombay v.

Nusserwanj Rattanji Mis ri and others

Venkatarama Ayyar J.

The Collector of Bombay v • . NUsserwanji Rattanji Mistri

and olhers

JI enkatarama

Ayyar J.

the rights of the parties. Moreover, that section only enacts that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor, and what is relied on is not any provision, restnct1on, condition or limitation over, in Exhibit A which according 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.

The respondents also relied on certain observations in Dadoba v. Collector of Bombay (1) as supporting their contention. There, the facts were that the Government had granted one parcel of land to the Free

Church Mission of Scotland revenue-free under a deed dated 1-10-1884. By another deed dated 20-12-1887 they released their right of reversion on two other parcels of land held by the Mission as tenants but "subject to the payment of taxes, rates, charges, assessments leviable or chargeable in respect of the said premises or anything for the time being thereon".

On 16-1-1888 the Mission sold all the three parcels to one Janardan Gopal, and the Secretary of State joined in the conveyance for effectually releasing the reversion of the Government. Before Tanardan Gopal purchased the lands, there had been correspondence between his solicitors and the Government as to the assessment payable on the lands, and the Government had intimated that it would be 9 pies per square yard per annum. Subsequent to the purchase, the Collector raised the . assessment payable on the lands, and the point for decision was whether he could lawfully do. so.

In deciding that he could not, Sir Lawrence Jenkins stated that the purchaser had paid full value for the lands in the belief induced by the Government that the assessment of 9 pies per sq. yard would be permanent, and that on the facts, the case fell within section 115 of the Evidence Act, and that the Government was estopped from enhancing the assessment.

He was also prepared to hold that t\le correspondence between the purchaser and the Government prior to

. .'-

' .

• ::f'

' /

;;:·

the sale amounted to a collateral contract not to raise the assessment.

Chandavarkar,

J., concurred in the decision, and in the course of his judgment observed:

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

These observations have been relied on as supporting the contention that when ther.e is an absolute sale by the Government, it amounts to an agreement not to levy more assessment than was payable at that time.

But the remarks of the learned Judge have reference to the recitals in the deed dated 20-12-1887 and the negotiations between the purchaser and the Government which are referred to in the passage, and not to the .character of the transfer as an absolute sale; and the decision is based on a finding of estoppel or collateral contract deducible from the correspondence between the purchaser and the Government.

Neither section 3 of the Crown Grants Act, nor the observations in Dadoba v. Collector of Bombay(1) lend any support to the contention that an absolute sale of lands by the Government ipso .facto confers on the purchasers a right to hold the lands free of revenue.

The question then is whether on the terms of Exhibit A such a right could be held to have been granted. There was some discussion at the Bar as to the correct rule of construction applicable to the deed, Exhibit A.

It was argued by the learned Solicitor- General for the appellant that being a Crown grant, Exhibit A should be construed in favour of the Crown and against the grantee. On the other hand, it was argued by the learned Attorney-General that it should make no difference in the construction of the grant, whether the grantor was the Crown or a subject, as

r. ,.--·

The Collector of Bombay v.

N usserwanji Rattanji Mmri

and others

Venkatarama Ayyar J.

.1955

The Collector of

Bombqy

Nusserwanji Rattanji Mist; i

and others

Venkatarama Ayyar J.

the question in either case was what had been granted; and that must be determined on the language of the deed. When closely examined, it will be seen that there is no real conflict between the two propositions.

The former is in the nature of a rule of substantive law; and its scope is that whereas the transferee from a subject acquires, unless . the contrary appears, all the rights which the transferor has in the property as enacted in section 8 of the Transfer of Property Act, as grantee from the Crown gets only what is granted by the deed, and nothing passes by implication. But when the grant is embodied in a deed, the question ultimately reduces itself to a determination of what was granted thereunder. What the Court has to do is to ascertain the intention of the grantor from the words of the document, and as the same words cannot be susceptible of two different meanings, it makes no difference whether they occur in a grant by the Crown or by the subject. If the words used in a grant by a subject would be effective to pass an interest, then those words must equally be effective to pass the same interest when they occur in a Crown grant. Dealing with this question, Sir John Coleridge observed in Lord v. Sydney ( 1) :

"But it is unnecessary for their Lordships to say more on this point, because they are clearly of opinion, that upon the true construction of this grant, the creek where it bounds the land is ad medium filum, included within it. In so holding they do not intend to differ from old authorities in respect to Crown grants; but upon a question of the meaning of the words, the same rules of common sense and justice must apply, whether the subject-matter of construction be a grant from the Crown, or from a subject; it is always a question of intention, to be coller ted from the language used with reference to the surrounding circumstances".

Exhibit A has to be construed in the lignt of these principles.

As already stated, there is no recital in the deed that the purchasers are entitled to hold the lands free of assessment On the other hand, it

(1) [1859] 12 Moore P.C. 473, 496, 497; 14 E.R. 991, 1000.

' '

...

expressly provides that the properties will be subject "to the payment of all cesses, taxes, rates, assessments, dues and duties whatsoever now or hereafter to become payable in re.pect thereof", which .words would in their natural and ordinary sense cover the present assessment. In Dadoba v. Collector of Bombay (1), the Court had to consider a clause similar to the above contained in a deed executed by the Government in favour of the Mission on 20-12-1887. Discussing the effect of this clause on the rights of the plaintiff to hold the property permanently on an assessment of 9 pies per sq. yard, Chandavarkar, J. observed:

"When that deed says that the property was sold 'subject to the payment of all taxes, rates, charges, assessments leviable or chargeable', it leaves the question open as to what the taxes etc., are which are 'leviable or chargeable'. Extrinsic evidence of that is admissible, for it neither contradicts nor varies the terms of the deed, but explains the sense in which the parties understood the words of the deed, which; taken by themselves, are capable of explanation : see Bank of New Zealand v. Simpson(2)''.

In that case, the dispute was not as to the liability to pay any assessment but to the quantum of assessment payable, and it was a possible view to take that the clause in question was not decisive on that question, and that it was left open. But here, the question is whether a right was granted to the purchaser to hold the lands free from liability to be assessed, and the clause in Exhibit A clearly negatives such a right.

Even if we are to regard the question as left open, as observed in Dadoba v. Collector of Bombay(!) , it will not assist the respondents, as they have not established aliunde any right to hold the lands free from assessment. It must, therefore, be held that far from exempting the lands from liability to be assessed to revenue, Exhibit A expressly subjects them to it.

It was finally contended that even if the land acquisition proceedings between 1864 and 1867 had not the

The Collector of Bombay v.

Nttsserwanji Rattanji Mistri and others

Venkatarama

Ayyar :J,

The Collector of Bombay v.

Nusserwanji Rattatifi Mistri and Others

V enkatarama ··

Ayyar ].

effect of extinguishing the right of the Government to levy assessment, and that even if Exhibit A conferred on the purchasers no right to hold the land revenue-free, the assessment which the Government was entitled to levy under section 8 of Act No. II of 1876 was limited to what was payable under the Foras Act No. VI of 1851, and that the appellant had no right . to levy assessment at a rate exceeding the same. The argument in support of the contention was that it was an incident of the Foras tenure under which the lands were held, that the occupants

were bound to pay only a fixed assessment, that the incident was annexed to the lands, and was inseparable therefrom, that between the dates when the lands were acquired under the Land Acquisition Act No. VI of 1857 and 22-11-1938 when they were sold under Exhibit A they continued to retain their character as F oras lands, that if no assessment was paid on the lands during that period, it was because the hand to pay and the hand to receive were the same, that when they came to the respondents under Exhibit A, they became impressed with the Foras tenure, and that, in consequence, they were liable to be assessed only at the rate payable under Act No. VI of 1851.

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

In support of the contention that the incidents of the Foras tenure continued to attach to the lands in the hands of the respondents, the learned Attornev- General relied on the following .observations of

"' .

' .

. /

+· -

Das, J. in Collector of Bombay v. Municipal Corporation of the .City of Bombay and others (1) :-

"The immunity from the liability to pay rent .is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose".

But the point for decision there was whether the Municipal Corporation of Bombay could acquire by prescription a right to hold the lands rent-free, they having entered into possession under a resolution of the Government that no rent would be charged.

And the passage quoted above merely laid down that when 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 t.o hold the lands revenue-free. But the question here is whether the right to hold the lands under a fixed assess- . ment survived after the acquisition by the Government under the land acquisition proceedings, and that depends on the effect of section VUI of Act .VI of 1857.

If, as observed in the . above passage, the liability to pay assessment was "an integral part or an inseverable incident of the title", then surely it was also extinguished along with the title of the occupants under section VIII of Act No. VI of 1857.

There is another difficulty in the way of accepting the contention of the respondents. The Foras Act was repealed in 1870 by Act No. XIV of 1870 long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were no longer available in respect of the lands. Section 1 of Act No. XIV of 1870 saves rights "already acquired or accrued'', and it is argued that the rights now claimed are within the saving clause. But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal, and the rights now claimed

(I}

1952 S.C.R. 43, 52.

,-.,

I •

The Collector of Bombay v.

Nusserwanji Ratlanji Mistri and others

Venkatarama Ayyar ].

'955

The Collector of

Bombay

Nusserwanji Rattanji Mislri

and others

Venkatarama Ayyar J.

March I

by the respondents are not within the saving clause.

In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents.

We accordingly allow the appeal, set aside the judgments of the Courts below, and dismiss both the suits instituted by the respondents with costs throughout.

Appeal allowed.

SURAJ PAL

ti.

THE STATE OF UTTAR PRADESH.

[VIVIAN BosE, JAGANNADHADAS and B. P. SINHA JJ.J

Indian Penal Code (Act XLV of 1860), ss. 302, 307-Charges and conviction by trial court under s. 302 read with s. 149 and under s. 307 read with s. 149 of the Code-Conviction by the appellate couri under ss. 302 and 307 of the Code-Legality-Code of Criminal Procedure (Act V of 1898), ss. 236, 237-Applicability-Retrlal.

Where a person has been charged along with others under ss. 302 and 307 of the Indian Penal Code each, only as read with section 149 of the Code, his convictions and sentences for the sub stantial offences under ss. 302 and 307 of the Code are erroneous.

The absence of specific charges in this. behalf is a serious lacuna in the proceedings, inasmuch as the framing of a specific and distinct charge in respect of every distinct head of criminal liability consti

tuting an offence is the foundation for a conviction and sentence cherefor. The conviction in these circumstances under ss. 302 and 307 of the Code and sentences of death and transportation for life -cannot be maintained unless the Court is satisfied, on the facts of the case, that the accused has not been prejudiced in his trial. Whe ther or not in such a situation the questioning of the accused during the course of his examination under s. 342 of the. Code of Criminal Procedure in relation to the offences under sections 302 and 307 of the Indian Penal Code can be relied upon as obviating the likelihood of prejudice has to be determined \Vith reference to the facts and ircumstances of each case.

All the circumstances of the case and the evidence and materials on the record should be looked into on the question arising in such a situation as to whether a retrial should be ordered or not ..

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 139 of 1954.

THE COLLECTOR OF BOMBAY

NUSSERWANJLRATTANJI MISTRI & OTHERS

VIVIAN BosE

SINHA JJ.

Bombay Act VI of 1851

s. 2

Land Acquisition Act

s. 8

Crown Grants Act

s. 3

Scope of-Bombay City Land Revenue Act

Bombay Act II of 1876

Bombay

s. 2

Bombay Act VI of 1851

Government of India

Bombay Act II of 1876

Nusserwanji Rattanj1° Mistri

Section 3

L.R. 64 I.A. 334

C. K. Daphtary

Porus A. Mehta

M. C.

Setalvad

R. J. Kolah

Rajinder Narain

B.B.C.I. Railway

Land Acquisition Act

Pochk.hanawalla

N usserwanji Rattaryi Mistri

QtJ11ji RattanJi Mistri

Ayyar

High Court of Bombay

Chagla

Bhagwati

Central Government

Pochklianaw

section 8

section 8

section 3( 4)

section 3( 4)

Calcutta

Madras

section 8

Venkatarama

.Ayyar

j•
1955

The Col/ctor oj

.Bombay v. -Jv usserwanji Rattanji Mi.rt.ri and others

Venkatarama

.Ayyar J.

The Collector Of

Bombay

V.

Nusierwatlji Ratta'!ii Mistri

and others

Venkalarama

A.yyar j.

in section 3( 4) of Act No.

Venkalarama

section 3( 4)

section 8

India

Infante Catherine

Charles II

England

Portugal

27th March 1668

East India Company

Mesuri~

L.R. 64 I.A. 334

Westropp

Sheik Abdul Ambly

Collector of Bombay

Nusserwanji Rattanji Mistri

Ayjar

Collector of

Bombay

Section 2

Section 4

section 8

section 2

Collector of

Bombay

l•tusseruanji Rattanji Aiistri

NU!strwanji Rattilnji Mistri

Venkatartima Ayya

Land Acquisition Act

Section VIII of the Act

Bombay

Rattanji Mistri

enkataraman

Ayyer

Wallis

Section 3

Section 9

section 11

section 16

section 11

section 3(b)

section 3(b)

Collector of Bombay

Nusstrwanji Rattanji Mistri

RattanJi Minri

Venkatatamli

section 3

Section 3

section 3

Transfer of Property Act, 1882

Section 2

section 3

section 3

Transfer of Property Act

Transfer of Property Act

section 3

section 2

section 3

section 3

Wright

Transfer of Property Act, 1882

section 3

Venkatarama Ayyar

NUsserwanji Rattanji Mistri

section 3

Janardan Gopal

Tanardan Gopal

Lawrence Jenkins

section 115

Chandavarkar

section 3

section 8

Transfer of Property Act

John Coleridge

section 8

Das

Municipal Corporation of Bombay

Section 1

Venkatarama Ayyar

section 8

SURAJ PAL

STATE OF UTTAR PRADESH

JAGANNADHADAS

B. P. SINHA

Indian Penal Code

ss. 302, 307

s. 302

s. 149

s. 307

s. 149

ss. 302 and 307

Code of Criminal Procedure

ss. 236, 237

ss. 302 and 307

Indian Penal Code

section 149

ss. 302 and 307

ss. 302 and 307

s. 342

Code of Criminal Procedure

sections 302 and 307

Indian Penal Code