LAXMAN KAJ, U NIKAJ, JE

THE STATE OF MAHARASHTRA

April 5, 1968

[M. HlDAYATULLAH, C.J., C. A. VAIDIALINGAM AND A. N.

GROVER. JJ.J

Indian Penal Code, (45 of 1860) ss. 299 altd 300-Scope of-

Wben appellant and his wife's brother-the deceased, were uarrelliag about the time of his wife's going with him, the appellant whipped out a knife and gave one blow to the deceased. by which an injury on the right side of the chest penetrating 4" deep into the che.'lt cavity was caused, resulting in death.

The appellant was convicted under •· 302

!PC.

HELD : The case fall within the third pan of s. 299 IPC and was punishable under the second part of s. 304 !PC as culpable homicide not amounting to murder.

Though the injury was serious, it did not penetrate the lung. Death was caused mainly because it cut the axiliary artery and veins and caused shock and haemorrhage leading to death.

The quarrel was not such as would have prompted the appellant to make a homicidal attack. ·

Thirdly of s. 300 requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death.

This clause is in two parts; the fint part is a subjective one which indicates that the injury must be an inten tional one and not an accidental one; the -second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. The first pan was complied with because the injury which was intended to be caused was the one which was found on the person of the deceased. But the second pan was not fulfilled. because but for the fact that the injury caused the severing of anery, death might not have ensued.

In other words. looking at the matter objectively, the injury which the appellant intended to cause did not include specifically the cutting of the artery but to wound the deceased in the neighbourhood 'Of the clavicle. Therefore, thirdly of ~. 300 did not cover the case.

Inasmuch as death had been caused, the matter came within at least culpable homicide not amounting to murder. There again, s. 299 is in three parts. The first

part takes in the doing of an act with the intention of causing death.

The appellant did not intend causing death and the first pan of s. 299 did not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also wa1

not the intention of appellant.

The matter therefore came wi•hin the third part. 'the act was done with the knowledge that the apPellant was likely by such act to cause the death Of the deceased. [690 B-691 CJ

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 1 of 1966.

686 SUPll.BMB OOUll.T llBPOll.TS

( 1968) 3 S.C.R.

Appeal by special leave from the judgment and order dated March 19, 1964 of the Bombay High Court in Criminal Appeal No. 257 of 1963, .

M. R. K. Pillai, for the appellant.

D. P. Bhandari and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by Hidayatullah C. J. This is an appeal from the judgment of the High Court of Bombay setting aside the acquittal of the appellant Laxman Kalu Nikalje and convicting him under s. 302 with a seotence of imprisonment for life. The facis of the case are as follows :

This Laxman was married to Shantabaii (P.W. 3) who is the daughter of one Bhika Ganpat Nikam (P.W. 2) a Railway employee working at a Railway crossing at Gartad District Dhullia. This crossing is situated on the Dhulia-Cbalisgaon Railway line. Bhika was residing in one of the quarters intended for such people near the Railway crossing with his wife D Gangubai, his sons Ramrao, Laxman and Bharat. Shantabai was married some five years before the occurrence and lived with her husband, Laxman at Ganeshpur Pimpri in Taluka Chalisgaon.

Some days before Nag Panchami of the year 1962 Shantabai was . brought to her parent's place. She stayed with them tfil E the 10th August 1962. Laxman wanted his wife back and arrived at Gartad to take her away to his own house.

Bhika put in some excuses saying that he had no money and he could only send his daughter back after he gets his pay on the 2 lst or the 22nd.

The excuse given by Bhika and his wife Gangubai was that they could not let the girl go without giving her some.

F ts and that money was needed for the purchase of these presents.

However, as Laxman insisted on taking his wife away illllllediat.ely, a sum of Rs. 10 was borrowed. It is said in one

place that money was borrowed from one Tarachand and in another, from Laxman, himself.

Gangubai in the company of Shantabai went to Dhulia to make SQJlle. purchases and returned on August 10 in the afternoon. It appears that a train was then G due and Laxman is said to have insisted that his wife should go with him by that train. The parents, however, said. that it was

not auspicious to send the girl at night and that they could go in the morning'.

It does not appear that any quarrel over this took.

Whether Laxman was reconciled to this suggestion or was still angry is not known. In the evening at about 7 P.M.

H Laxman was sitting with Shantabai and Ramrao outside the -quarter and Bhika was chopping some fuel at the back of the hut, Kamlabai (the widow of Ramrao), Gangubai, Bharat and

Laxman were inside the room.

According to Shantabai, Ramrao and Laxman had a few words and on that Laxm.an took out a knife and stabbed Ramrao on the shoulder and ran away.

Ramrao shouted and so did Shantabai; Bhika and others arrived on the scene.

They carried Ramrao on a cot to. the Railway Crossing and when the train arrived, it was stopped by showing the danger signal. Ramrao was placed on the train and left on the train accompanied by Bhika, Gangubai and Kamlabai.

On the train, Bhika told the Guard that his sonin-law had stabbed the injured man. The Railway guard noted this fact in his log book.

Ramrao was carried to the Dhulia hospital and was found to have died before his entry in the hospital.

A report of the incident was then also made, in which the name of Laxman was mentioned as the assailant.

The police, after investigation, prosecuted Laxman.

On behalf of the prosecution, Shantabai was the main witness and in fact \he only eye-witness.

Gangubai and Bhika did not claim to have seen the actual happening.

On behalf of the defence, Kamlabai, the widow of Ramrao was examined and it is because of the contrary versions of these two ladies that tbe conflicting decisions in the High Court and the Court of Sessions have taken place. According to Shantabai it was her husband who had in flicted the injury.

According to Kamlabai the injury was caused by one Kacharu, a son of Bhika. who has been missing from home for over 15 years and who had arrived and quarrelled E with Ramrao and assaulted him. In support of the defence evidence of Kamlabai, three other witnesses were examined.

One was C. Ananda Patil, M.P. who s•ated that his jeep had stopped near the level crossing because the gates were shut and the train was due. He heard shouts from the quarter of Bhika

and went there and enquired what had happened and he was told that the "elder brother had stabbed tbe younger brother".

In other words, his evidence was to the effect that it was Kacharu the elder missing brother of Ramrao who had stabbed the victim.

Two other witnesses who are railway employees also came forward to depose that after this incident they had met Kacharu and that Kacharu had threatened them and told them that he would cause them injury asking them about "circumstances of his family". These two persons made a report to their superior officer and in that it is mentioned that on the 10th, 11th and 13th August they had seen Kacharu. Kamlabai also made two written reports to the D.S.P. on the 26th and 27th Aul?Ust alleging that an innocent person was being prosecuted inst.cad of the right offender, namely, Kacharu. She adhered to her story in the Court of Sessions and said that these reports were orepared to her dictation.

The learned Sessions Judge who tried the case did not accept Skantabai's evidence in view of two or th.:ee contradictions

SUPREME COURT REPORTS

[1968) 3 S.C.R.

which were brought out in her cross-examination on the basis of her previous statement in the committal court.

He thought that in all t; he circumstances Kamlaba.i's version appeared to be the more probable, supporred as it was by the evidence of Ananda Patil and the other two railway employto whom we have referred.

On appeal the High Court went into this question exhaustively.

The learned Judges discussed the matter both from the point of view of actual evidence led in the case and also probabilities.

The learned Judges discarded the evidence of Kamlabai holding that she was interested in saving Laxman, the appellant, because he was related in a distant way with her.

They felt that there was no reason for Shantab11i to have deposed agai!nst her own husband and the suggestion made in 'the Sessions Court that Shantabai wanted to get rid of her husband because he was a cripple and was ill-treating her had no substance in fact.

We have had the evidence of these two ladies read to us and also the judgments of the High Court and the Court of Sessions.

We think that on a proper appraisal of all the cirumstances of the case the view expounded by the High Court is to be preferred.

We may say here that it is now the settled

law that the powers of the High Court in an appeal against the acquittal are not different from the powers of the same court in hearing an appeal agjlinst a conviction.

The High Court in dealing with such an appeal can go into all questions of fact E. and law and reach its own conclusions on evidence prov'ded it pays due regard to the fact that the matter had been before the Court of Sessions and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts. Further the High Court in reversing the judgment of the Sessions Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. It may also be pointed out that an accused starts with a presumption of innocence when he is put up for trial and his acquittal in no sense weakens that presumption, and this presumption must also receive adequate consideration from the High Court.

We have borne all these principles in mind and we think that the H'gh Court was also alive to them, because the High Court

has considered the matter in a closely reasoned judgment in which it has taken 'into account every single reason given by the Sessions Judge in reaching the conchisioti that Shantabai's version was to be preferred and the evidence of Kamlabai to be H rejected. If the evidence which has come before the High Court in supoort of Kamlabai's version had existed before the incid'?flt

took place, it would have been a significant but not conclusive

fact. It is, however, clear that these persons speak to have seen Kacharu after the incident and not before. Only one witness said that he was living for five months with his parents.

It jg. significant that the father and the mother were not closely questioned about Kacharu Jiving with them for as many as five months.

That apart, if Kacharu had been riving in the village for as many as five months, much more evidence would have been vai!able, to prove the fact.

The evidence which has. been brought before the Court is of his doings on the 10th and after the 10th of August and there is nothing to show that there was any other thing he had done in the village before.

The fact is that he had disappeared from home as many as 15 years all?· and it is unlikely that he would have appeared just at the crucial time when LaXIDan had gone to fetch his wife and had a diil'erence of opinion as to whether she should go by the evening train or the morning train. In our opinion advantage was taken of the fact that Kacharu had disappeared from home.

There was no risk in naming him as the assailant with a view to saving taxman from the charge which was immediately brought against him not only by his father-in-Jaw but also by his own wife and' was reported to the guard on the Railway train and also stated in the report to the Police made immediately afterwards. Kamlabai Sf'.ems to have delayed making her statement to the Police and there is nothing to show on the record of" the case that she ever named Kacharu as the real assailant to the Police. It is unfortunate that our law does not admit of cross-examination of such a witness in respect of statements before the Police.

We endorse the action of the Sessions Judge in excluding reference to this statement in the Sessions trial.

The fact thus remains that the evidence did not disclose that Kacharu came on the scene at any earlier moment and the only evidence is that of Ananda Patil who, on enquiry, was told, we d<? not know by whom, that the elder brother had stabbed the younger brother. This in any case, is hearsay evidence and' cannot be acted upon.

Therefore, without going too much into the details of-the matter, we only wish to 'say that between the two juents which we have closely examined and which have be_en read to u.s in full, we prefer that of the' High Court and thmk that in all the circumstances of the case, it was a fair and proper appraisal of the divergent evidence in the case.

We must therefore hold that it Was Laxman, the appellant who was responsible for caustng the injury to Ramrao.

The ne'.'t question is what was the offence which was brought H home to him? The injury is a single one.

Shantabai did not • speak about the weapon; she only stated that he hit him with a

weapo~ and ran. away.

On examination the injury was found to be situated 2 mch below the outer 1/3 of right clavicle on the

il90 SUP.IU!MB COUllT UPORTS

[1968) 3 S.C.R.

right side of the chest and penetrated to the depth of 4 inch A into $e chest cavity. It is no doubt true that the injury was serious, but it is io be noticed that it did not penetrate the Jung.

Death was caused mainly because it cut the axillary artery and veins and caused shock and haemorrhage leading to death. In these circumstances, it is necessary to consider whether this case is covered by any of the clauses of s. 300 of the Indian Penal

JI.

Code.

Mr. Bhandari who appeared before us for the State frankly conceded, and we think rightly, that the case was not covered by the first and tire second clause. It must be remembered that the quarrel between Ramrao and Laxman was not such as would have prompted Laxman to make a homicidal attack upon c his brother-in-law. The quarrel was only this much, whether Laxman's wife should accompany him by the evening train or the morning train. It may be that some abuses might have en sued as is common among these people, and Laxman having ]06t his temper whipped out his knife and gave one blow.

It must be remembered that he gave one blow and alth6ugh it was given on the chest, it was not on a vital part of the chest and but for D the fact that the knife cut an artery inside, death might not have ensued. Therefore the question is whether the offence can be said to be covered by thirdly of s. 300 of the Indian Penal Code.

That section requires that the bodily injury must be intended -and the bodily injury intended to be caused must be sufficient

in the ordinary course of nature to cause death.

This clause E

is in two parts; the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking a1 the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death.

We think that the first part is complied with, because the injury F which was intended to be caused was the one which was found on the person of Ramrao. But the second part in our opinion is not fulfilled, because but for the fact that the injury caused the severing of artery, death might not have ensued.

In other words, looking at the matter objectively, the injury which Laxman intended to cause did not include specifically the cutting of the artery but to WOUl!d Ramrao in the neighbourhood of the clavicle. Therefore, we are of opinion tl!l-t the thirdly of s. 300

does not cover the case.

Inasmuch as aeath bas been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, s. 299 is in three parts.

The first part takes in the doing of an act with the inntion _of

causing death.

As we have shown above, Laxman did not intend causing death and the first part of s. 299 does not app!Y 'The second part deals with the intention of causing such bodily

v. STATE (Hidayatul/ah, C.I.) 691

A injury as is likely to cause death. Here again, tho intention must be to cause the precise injury likely . to cause death and that also, as we have shown above, was not the intention of Laxman. The matter therefore comes within the thitd part.

The act which was done was done with the knowledge that Laxman was likely by such act to cause the death of Ramrao.

B The case falls within the thitd part of s. 299 and will be punishable under the second part of s. 304 of the Indian Penal Code as culpable homicide not amounting to murder. We accordinaly

alter the conviction of LaX!ll8n from s. 302 to s. 304 of the Indian Penal Code and in lieu of the sentence of imprisonment for life imposed on him, we impose a sentence of rigorous im C prisonment for 7 years. With this modification, the appeal shall stand dismissed.

Y.P.

Appeal dismissed.

JE

THE STATE OF MAHARASHTRA

April 5, 1968

GROVER

Indian Penal Code

ss. 299

s. 299

IPC

s. 304

s. 300

s. 299

s. 299

M. R. K. Pillai

D. P. Bhandari

S. P. Nayar

Hidayatullah

Laxman Kalu Nikalje

s. 302

Shantabaii

Bhika Ganpat Nikam

Bhika

D Gangubai

Ramrao

Laxman

Bharat

Shantabai

Ganeshpur Pimpri

Taluka Chalisgaon

Gartad

Gangubai

Tarachand

Dhulia

August 10 in

H Laxman

Kamlabai

Dhulia hospital

Shantabai

Gangubai

Bhika

Kamlabai

Kacharu

C. Ananda Patil

Bhika

D.S.P.

26th and 27th Aul?Ust alleging

Skantabai

Kamlaba.i's

Ananda Patil

Kacharu Jiving

10th of August

LaXIDan

Kamlabai Sf'.ems

s. 300

Bhandari

s. 300

Indian Penal Code

s. 300

s. 299

s. 299

s. 299

s. 304

Indian Penal Code

s. 302

s. 304

Indian Penal Code


•692

STATE OF GUJARAT ETC.

VAKHTSINGH11 SURSINGHJI VAGHELA & ORS. ETC.

April 8, 1968

[M. HIDAYATULLAH, C.J., R. S. BACHAWAT, G. K. MITTER,

C. A. VAIDIALINGAM AND K. S. HEGDE, JJ.J

Bombay Taluqdari Abolition Act 62 of 1949. ss. 7 and 14-Right to 'JJ(ly ; ania or land revenue at reduced rates-Whether a right for whicli compensation 1) payable under s. 14-15% solatium whether pa, vable in addition to conipensation for lands under s. 1-Method of 1vorking out .contpensation for irrigation bunds, tanks and 1vells-Right to compensa- --- tion for river, river beds, Bht4has.

Constitution of India, Art. 227-Scope of High Court's power to interfere with Tribunal's order and to give directions.

The respondcnts filed claims before the Collector Ahmedabad for compensation under ss. 11 and 14 of the Bombay Taluqdari Abolition Act, 1949. Against the Collector's awards !hey appealed to the Revenue Tribunal and thereafter filed petitions under Art. 227 before the High Court. From the High Court's orders the State of Gujarat appealed to Ibis Court. The matters in dispute were: (i) whethel' the right to pay .only 60% of the full jama or revenue assessment on their lands which the respondents had been enjoying was a right for the extinguishment of which compensation under s. 14 of the Act was pavable; (ii) whether under the provisions of the Act the respondents were entitled to 15%

solatium in addition to the compensation which they were awarded for their lands; (iii) what was the proper method of working out the value Of irrigational bunds, tanks and weUs for the purpose of compensation;

(iv) whether compensation was payable to the respondents in respect of river and river beds. The Court had also to consider the scope of the High Court's power under Art. 227 of the Constitution in the context of the case.

HELD: (i) The taluqdari estates were liable to payment of jama.

As a matter of concession the jama was generally 60% of the survey

....., sment. The taluqdars had no legal right to claim the concession on the expiry of their current settlements, and at the next revisional settlement the Government had the right to withdraw the concession and impoae full assessment The right of the taluqdars to pay the jama at the concessional rate till the expiry of the current settlement was pre 861"Ved by s. 5 of. the Abolition Act. The enhanced assessment which they had to pay thereafter did not affect any contractual or statutolry right vested in them.

Even assuming that it modified or extinguished any right, such modification or extinguishment did not amount to trans. ference to public ownership of land or any right in or owr land within the meaning of s. 14 of the Abolition Act. The CoUector, the Revenue Tribunal and the High Court therefore rightly rejected the claim of the respondents for compensation for the difference in the jama and the full a8'cssment. [698 C, 699 H, 700 A]

Rao Bahadur Kunwar Lal Singh v. The Central Provinces and Berar, [1944] F.C.R, 284, applied.

Nalfllb Sardar f\larharsinghji lshvarshinghji v. The Secretarv of State for India. 43 Born. L.R. 167, referred to.

GUJARAT V. VAKHTSINGHJI 693

(ii) The Collector is required by s. 7(1)(b) , to make an award in the manner prescribed in s. 11 of the Land Acquisition Act, 1894. The Collector has to make an award under s. 11 and having regard to s. 15 in determining the amount of compensation, he is guided by the provisions of s. 23 and s. 24. Section 23(1) requires an award of the market value of the :and. Section 23(2) requires an additional award of a sum of fifteen pee centum on such market value, in consideration of the com~ pulsory nature of acquisition.

It follows that under s. 7(1)(b) of the Abolition Aet read with s. II of the Land Acquisition Act the taluqdars a£e entitled to receive as compensation the market v.alue of all rights in any property extinguished under s. 6 and in addition a sum of 15 per cent on such market value.

Tho right is subject to the conditions and exceptions enumerated in sub-els. (i), (ii) and (ili) of s. 7(i)(b).

(701 C-FJ

(iil) In regard to irrigational bunds, tanks and weJls the High Court rightly rejected the claim for compensation based on reinstatement value.

This method should not be adopted when the market value deduced from the income derived from the lands would fairly compensate the owner and in no case can reinstatement value be gin untess reinstatement in

some other place is bona fide intended. lo the present case the High Court found that there was no intention to reinstate the bunds. (703 C-DJ

lbe value of irrigational bunds, tanks and wells is not what they cost but what they yield in annual income. The High Court rightly adopted the yield basis of valuation. The Himayat assessment and the water tales adopted by the Collector and the Tribunal did not give the correct yield.

The. High Court therefore rightly directed further inquiries into this claim. [703 El

Raia Vyricherla Gajapatiraju v.

The .Revenue Divisional Officer, Viz; agapatam, 66 I.A. 104, Harish Chandra Neogy v. Secretary of State for India, 25 C.W.N. 875 and Province of West Bengal v. Roja Jhargram, A.I.It 1955 Cal. 392, referred to. ( {iv) In regard to river and river beds, the taluqdars had no property in running water. They were the owners of the river beds but the submerged river beds were of no value to them. They could rightly claim compensation only for the Bhathas formed in the rivers and other portiOll.S of the river beds whe're crops could be raised during some parts of the vear. [703 F-01

(v) Article 227 of the Constitution gives the High Court the power of superintendenee over all courts and tribunals throughout the territories ation to which it exercised jurisdiction. This jurisdiction cannot be !muted or ~·red .by any A71 of the . tate Legislature.

The High Court had 1urisd1ct1on to revise the dec1S1on of the Tribunal in respect of the olatill!" and irrigational bunds tanks and wells, when the Tribunal on a mISreadmg of ss. 7 and 14 of the Abolition Act declined to do what was by those l'rov!sions !t!cumbent on it. to d.o.

The High Coun could not only set aside its dec1S1on. but also direct 11 to mak~ further inquiries aftol' taking evidence. (705 B-GJ -

l .edHari Vishnu Karnath v. Syed Ahmed /shaque, [1955] !$.C.R. J!()4, re 1 on. _ .

. CML APPELLATE JURISDICTION : Civil Appeals Nos. 517 to 534 of 1965,

Appeals from the judgment and decree dated January 12 1961 of the Gujarat High Court in Special Civil Application; Nos. 78 to 83 and 96 to 101 of 1960.

694 SUPREME ccfthtT REPORTS

(1968] 3 S.C.R.

N. S. Bindra and S. P. Nayar, for the appellant (in C. A.

A Nos. S 17 to 528 of 1965) and for respondent-State of Gujarat (in CAs. Nos. 5~9 to 534 of 1965).

A. K. Sen, Bhuvanesh Kumari, I. B. Dadachanji, 0. c.

Mathur, Ravinder Narain and M. H. Chhatrapati, for respondent No. 1 (in C.As. Nos. 517 and 524 of 1965).

A. K. Sen, M. H. Chhatrapati, and Bhuvanesh Kumarl, for respondent No. 1 (in C.As. Nos. 518 to 522 of 1965) and the appellant (in C.A. No. 530 of 1965).

M. H. Chhatri[1ati and Bhuvanesh Kumari for respondent No. 1 (in C.As. Nos. 523, and 526 to 528 of 1965) an.d appellant (in C.A. No. 529 and 531 to 534 of 1965).

N. A. Palkhivala, M; H. Chhatrapati and Bhuvanesh Kumari, for respondent No. 1 (in C.A. No. 525 of 1965). "'

The Judgment of the Court was delivered by

Bachawat, J.-These appeals are directed against the orders of the Gujarat High Court passed under Art. 227 of the Consti- D tution revising the appellate orders of the Bombay Revenue Tribunal modifying certain awards of the Special Deputy Collector, Ahmedabad.

Claims for compensation under secs. 7 and 14 of the Bombay Taluqdari Abolition Act, 1949 (Bombay Act LXII of 1949) were filed before the Collector by the Taluqdars of certain villages in the district of Ahmedabad. The Collector J: made his awards of compensation under secs. 7 and 14. The claimants filed appeals before the Revenue Tribunal and later petitions under Art. 227 of the Constitution to the High Court.

The present appeals are filed by the State of Gujarat and some of the claimants.

The principal matters in oontroversy in these appeals relate to the award of compensation under the heads : I'

(1) difference in Jama and full assessment, (ii) solatium of 15 % .on the market value, (iii) irrigational bunds, tanks and wells and (iv) river and river beds.

Excellent accounts of the history and incidents of the taluqdari tenures are given in Dr. Govind D. Patel's Agrarian Reforms in Bombay, 1950, Mr. J. B. Peile's Report, Government G Selection No. CVI New Series, p. 13, Mr. L. Robertson's Report on the conditions of the taluqdars of the Ahmedabad district,

1903, statement of objects and reasoJ!S for Bill No. 6 of 1885 printed in Bombay Government Gazette, dated the 26th December, 1885, Part V, at p. 65 and Nawab Sardar Narharsinghji Ishvarsinghjl v. The Secretary of State for India('). The origin 11 of the Gujarat taluqdars may be traced to Moghul and pre- Moghul times.

They are found mainly in the / districts of

(!) 43 Bom. L. R. 167.

GUJARAT I'. VAKHTS!NGJIJI (Bachawat, J.) 695

Ahmedabad, Kaira, Broach and the Panchmahals. The leading charac,'.eristics of the taluqdari tenure is that the taluqdari estate is neither alienated nor unalienated but is proprietary.

Until 1862 the taluqdars were legally though incorrectly regarded as mere lease holders.

From 1862 till 1888 they were full proprietors with unlimited powers of alienation.

From 1888 onwards they were full proprietors with restricted powers of alienation.

Their estates were subject to payment of a jama to the Government. Originally th'e jama was regarded as a tribute but later it beca, me a roughly calculated tax on the rental, then a land tax and finally land revenue.

Acts were passed from time to time for ameliorating the conditions of the taluqdars.

Since 1888 the taluqdari villages and estates were governed by the provisions of the Gujarat Taluqdars' Act, 1888 (Bom. Act VI of 1888).

Under sec. 2(1) (c) of this Act Jama meant land revenue payable by the taluqdars to the Government.

Section 4 empowered the Government to direct a revenue survey of a taluqdari estate under the provisions of the Bombay Land Revenue Code, 1879. Sections 22 and 23 deal with the taluqdar's .iama :

"22(1). If a taluqdar's estate, or any portion thereof is not wholly or partially exemp'. from land-revenue and its liability to payment of land revenue is not subject to special conditions or restrictions, the jama payable to (the Provincial Government) in respect of such estate or portion thereof shall, if a survey settlement has been extended thereto, be the aggregate of the survey assessment of the lands composing such estate or such portion thereof minus such deduction, if any, as (the Provincial Government) shall in each case direct.

(2) nte (Provincial Government) may declare the amount of jama so ascertained fixr.d for any term not exceeding thitty years.

23 (1) Nothing in this Act shall . be deemed to affect the validity of any agreement, heretofore, entered into by or with a taluqdar and still in force as to the amount of his jama nor of any settlement of the amoun'. -of jama made by or under the orders of the (Provincial Government) for a term of years and still i11 force. t

(2) Every such agreemen: and settlement shall . have effect a'.sif this Act had not been passed:" The iama was usually fixed ( uddhad) in respect of the estates in Kaira and Broach but those in Ahmedabad and Panchmahals

8SupCl/6S-l

696 StlP.IUlME COURT lUlPOllTS

('968) 3 S.C.R.

were liable to revision at every revisional settlement. The A. ftuctuating jam.a in respect of these latter estates could ndcr s. 22 be fixed at an amount equal to the full survey assessment of all the lands comprised within the estate. In practice the l jam.a of the claimants' estates in Ahmedabad was limi~ to about 60% of the full assessment. As a measure of. agrarian reform the Government decided to abolish the taluqdar tenures It altogether.

Accordingly the Bombay Taluqdari Tenure Abolition Aot, 1949 was passed on January 24, 1950. It came into• force oil August 15, 1950. It extends to the districts of Ahmedabad, Kaira, Broach and Panchmahals.

It repealed the Gujarat Taluqdars' Act of 18 8 8 and certain other ial Acts !elating to taluqdars. Section 3 abolish.ed the taluqdari tenure and ex- I; tinguished all incidents of the tenure attached to any land comprised in a taluqdari estate save as provided in the Act. Under sec. 4 all revenue surveys and settlements made under sec. 4 of the Gujarat Taluqdars Act, 1888 are deemed to have been made under Chapters VIII and VIlfA of the Land Revenue Code.

By section 5 (1 )(a) all taluqdari lands are henceforth " liable to the payment of land revenue in accordance with the I> provisions of the Land Revenue Code and the rules made thereunder. But this provision does not , affect the right of any person to hold any taluqdari land wholly or partially exempt from the payment of land revenue under a special contract or any other law for the time being in force [s. 5(2)(a)] nor the right of any person to pay jama under any agreement or settlement re- E. cognised under sec. 23, or under a declaration made under sec tion 22 of the Gujarat Taluqdars' Act so long as such agieement, settlement or declaration remains in force [s~ 5 (2 }(b )].

Section 5 ( 1) (b) provides that a taluqdar holding any taluqdari land shall be deemed to be an occupant within the meaning of the Land Revenue Code or any other law for the time being in , force.

Section 6 provides that all public roads, !!Illes etc., ndf f situate within the limits of the wantas belonging to a taluqdar in a taluqdari estate shall vest in the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished.

Section 7 proV1des for payment of compensation to taluqdars for extinguismnent of rights under section 6.

Sec- . tion 14 provides for payment of compensation for extingwsh- G ment or modification of any other right in any land where such extinguishment or modification amounts to transference to public ownership of such land or any right in or over such land.

Section 17 makes applicable provisions of the Land Revenue Code to all taluqdari lands with certa.in modifications. Sections

8 9 and 1 O provide for appeals from lhe Collector's award. 8 S::Won 12 provides that the awanl made by the Collector and the decision of the Bombay Revenue Tribunal on appeal shall be final and conclusive and shall not be questioned in any suit

GU.JAR:'AT v. VilHTSINGHJl (Bachawat, /.) 697

or proceeding in any court.

The Act is protected by Art. 31B of the Constitution. It was amended from time to time. ClaUS6

(a) of section 5(2) was deleted by Bombay Act 42 of 1953.

Section SA was inserted by Bombay Act I of 1955. Section SA

made a pennanent tenant and an inferior holder in possession of, any taluqdari land an occupant in respect of such land on payment of compensation to the taluqdar.

In these appeals the taluqdars claim compensation for the loss of benefit of the difference between the jama and the full assessment. The jama payable under the settlements made before the.Abolition Act was 60% of the total assessment. Their right to pliy the jama only under those settlements were not affected in view of section 5 (2 )(b). They have obtained the full benefit of the concessional jama while the settlements remained in force. The period of those settlements have now expired and they are now liable to pay full assessment.

They have thus suffeRld a loss of 40% of the land revenue of the villages. They claim compensation for this loss under s. 14 (1 ) of the Abolition Act which reads..:~

• "14.(1). If any person is aggrieved by any of the provisions of this Act as extinguishing or modifying any of his rights in any land other than those in respect

of which provision for the payment of compensation has been made under section 7 and if such person proves that such extinguishment or modification amounts to the transference to public ownership of such land or any right in or over such land, such person may apply to the Collector for compensation within a

pei-iod of twelve months from the date on which this Act comes into force."

"Any person" in sec. 14( 1) includes a taluqdar. To get com pensation under the section the claimant must establish firstly that his rights in any land other than those for which provision for comJle'Ilsation is made under s. 7 has been extinguished or modified and secondly' that such extinguishment or modificati9n amounts fo .the transference to public ownership of such land or any right in or over such land. The taluqdars contend that they had the right to pay a jama not exceeding 60% of the survey assessment of the lands comprised in the estate.

According to them the Government had issued directions under section 22 (1 ) of. the Gujarat Taluqdars' Act, 1888 so limiting the jama. They say that such direction is to be found in the memorandum of the Government of Bombay issued on October 2, 1914 with reference to the recommendation made by the Commissioner, .

Northern Division, in his letter dated April 13, 1914. The ltigh Court has ref.erred to these documents in some detail. It appears

SUPREME COURT REPORTS

(1968) 3 S.C.R.

that the Gujarat Taluqdari Bill was then pending before the A Legislative Council. The memorandum shows the Government's willingness to incorporate in the Bill suitable provision regarding the fixation of olhe jama. In our opinion, the memorandum was not a direction under sec. 22( 1) nor did it create a legal right in the taluqdars to pay a jama of 60% of the survey assessment.

B The taluqdari estates were always liable to payment of jama or land revenue.

As a matter of concession the jama was generally 60% of the survey assessment of the lands comprised in the esta1e.

The taluqdars had no legal right to claim the concession on the expiry of their current settlements.

At the next revis1onal settlement the Government had the right to withdraw C the concession and to impose full assessment on the taluqdari lands.

Section 5(1)(a) of the Abolition Act by imposing full assessment on the taluqdari lands after the expiry of the period of the current settlements did not extinguish or modify any vested right of the taluqdars.

Mr. Palkhiwala argu.ed that section 5 effected a transfer of D the proprietary rights of the taluqdars in their lands to the Government together with the advantage of paying reduced revenue and a re-transfer of the occupancy rights in those lands to the taluqdars and consequently there was extinguishment or modification of their rights amounting to transference to public ownership of rights in and over such lands. The argument, though E ingenious, does not bear scrutiny.

Before the High Court the faluqdars made no claim for compensation generally for any loss of proprietary right.

Mr. Palkhiwala therefore said that he did not make any claim for compensation for the loss of proprietary right other than the loss arising from the liability to pay full assessmeni.

We have therefore to consider only the claim for compensation for the difference between the jama and the fn11 F assessment.

In Rao Bahadur Kunwar Lal Singh v. The Central Provinces and Berar(') the appellant Rao Bahadur Kunwar Lal Singh held in Zamindari rights certain estates in the Central Provinces. The land revenue in respect of the estates was settled in 1921 und.cr the Central Provinces Land Revenue Act, 1917 for a period of 19 years from July 1, 1919 and July 1, 1920 and thereafter until a fresh settlement was made.

Section 88 of the Act provided that if the assessmeni of an estate, had been accepted under the Act, the proprietors would be bound to pay the land revenue assessed thereon from such date and for such term as the Provincial Government might appoint in that behalf and if at the expiry of wch term no new assessment had been made, until a

(1) [1944! P. C. R. 284.

H <

GUJARAT v. VAKHTSINGHJI (Bachawat, J.) 699

new assessment was made. . The Central Provinces Revision. of the Land Revenue of Estates Act, 1939 enacted that with effect from July 1, 1938 notwithstanding anything .contained in the Act of 1917 the land revenue payable to the Government in respect of the estates would be enhanced to the amounts mentioned in the Schedule to the Act of 1939. By an Amending Act of 1941 it was provided that those amounts would be deemed to have been assessed, offered and accepted under the Act of 1917.

The appellant contended that as no. new settlement had been made the Act of 1939 extinguished or deprived him of his contractal as well as statutory right to hold his estates subject only to the payment of the takoli fixed in 1921 and thus amounted to an acquisition of his right in land in contravention of section 299(2) of the Government of India Act, 1935: The Federal Court repelled this contention.

Spens, C.J. observed :-

"It is, we think, impossible to hold that the mere increase of an assessment for land revenue involves any acquisition ofthe land or any rights in or over immovable property.

It further seems to us that the word 'acquisition' implies that there must .be an actual transferenee of, and it must be possible to indicate some person or body to whom is or are transferred, the land or righis referred to.

It is impossible, in our view to suggest that when the land revenue is increased, there is any transference to the PrOvincial Government or .any other person of any land or rights in or over immovable property, which remain in the same possession or ownership as immediately before the increase of the assessment. In our judgment, the attempt to bring the case within s. 299(2) must. fail." .

It. will be noticed that the Zamindar in that case was bound to pay only the fixed land revenue for the period of 19 years and thereafter until a new settlement was made.

The increase in land revenue made by the 1939 Act affected this right. Nevertheless it was held that the increase in land revenue did not involve any transference to ' the Government of any right in or over any immovable property. The case of the taluqdars in the. present case is \Yealcer.

Their. right to pay the jama only while the . old settlements remained . m force was not affected by section S.

The increase in land revenue on the expiry of. those settlements was not due to any change in ownership.

The enhanced. assessment did not affect any contractual or statutory right vested in them. Even assU111ing that it modified or ex tingu~ any right, such modification or extinguishment did not amount to transference to pµblic ownership of land or any

?00 SUPllBMB COU.llT llBPORTS [1968] 3 s.c.R.

right in or over land within the meaning of sec. 14 of the .Bom A bay Taluqdari Tenure Abolition Act. The Collector, the Revenue Tribunal and the High Coun therefore rightly rejected the claim of the taluqdars for compensation for the difference in the jama and the full assessment.

The n¢xt claim is for payment of a solatium of 15 per cen tum on the market value awarded under .section 7 of the Aboli- B tion Act.

The Collector and the Revenue Tribunal rejected this claim.

The High Coun partially allowed it and directed that an amount of 15 % should be added to the market value awarded under section 7(1)(b)(ili). This ruling is challenged by both the State of Gujarat and the taluqdars.

Section 7 (l) reads :- c 7.(1) Any taluqdar having any rights in such property shall be entitled to compensation in the manner provided in the following paragraphs namely:-

(a) within a period of twelve months from the date on which this Act comes into force, the taluqdar shall apply in writing to the Collector stating the nature of Iris right, the ground of his claim and the amount of compensation claimed by him for the extinguishment of his right; ( b) the Collector shall hold a formal inquiry in the manner provided in the Code and if the Collector ia satisfied that the applicant had any rights in the land and that such rights have been extinguished under the last preceding section, shall make an award in the manner prescribed in seciion 11 of the Land Acquisition Act, 1894 (l of 1894). subject to the following conditions :-

(i) if the property acquired is waste or uncultivated but is culturable land the amount of compensation shall not exceed three times the assessment of the land; Provided that if the land has not been assessed, the amount of compensation shall not exceed such amount of assessment as would be leviable in the same village on the same extent of similar land used. for the same purpose;

(II) if the property is land over which the public has been enjoying or acquired a right of way or any individual has any right of easement, the amount of compensation shall not exceed the amount of the annual assessment leviable in the village for unculti-

GUJARAT v. VAKHTS!NGHJI (Bachawat, J.) 701

vai.ed land in accordance with the rules made under the Code or if such rules do not provide , the levy of such assessment, such amount as in the opinion of the Collector shall be the market value of the right or interest held by the claimant;

(iii) if there are any trees or structures on the land, the amount of compensation shall be the market value if such .trees or structures, as the case may be; Explanation-For the purpose of this section the "market value" shall mean the value as estimated in accordance with the provisions of sections 23 and 24 of the Land Acquisition Act, 1894 (1 of 1894), in so far as such provisions may be applicable." Section 7 ( 1) gives compensation to taluqdars for extinguishment of rights in any property under sec. 6.

The Collector is required by sec. 7 (1 )(b) to make an award in the manner prescribed in section 11 of the Land Acquisition Act, 1894. The Collector has to make an award of compensation under sec. 11 and having regard to sec. 15 in determining the amount of compensation, he is guided by the provisions of secs. 23 and .24 ..

Section 23 ( 1) requires an award of the market value of the land.

Section 23(2) requires an additional award of a sum of fifteen per centum on such market value, in consideration of the compulsory nature of acquisition. It follows that under sec. 7 ( 1 )(b) of the Abolition Act read with section 11 of the Land Acquisition Act, the taluqdars are entitled to receive as compensation the market value of all rights in any property extinguished under sec. 6 and in addition a sum of 15 per centum on such market value. This right is subject to the conditions and exceptions enumerated in sub-clauses (i), (ii) and

(iii) of section 7(l)(b). In cases falling under clause (i) and in some cases under clause (ii) the amount of compensation is liniited.

In cases falling under clause (iii) and in some cases under clause (ii)· the amount of compensation is the "market value" which according to the explanation to sec. 7 (1 ) means. the value estimated in accordance with sections 23 and 24 of the Land Acquisition Act, 1894. The value so determined includes the G solatium of 15 per centum payable under sub-section

(2) of s. 23. Where the legislature intended to exclude the application of sub-section (2) of sec. 23, it has said so, as in section 14(2) und<tr which compensation is determined in accordance with the provisions of sub-section ( 1) of sections 23 and 24.

It follows that the taluqdar is entitled to the solatium of 15 per centum on the market value, ( 1 ) under the main part of sec. 7 ( 1 )(b) subject to the provisions of the several sub-clauses JI

thereof: (2) in cases falling under clause (iii) of section 7(1)(b) and (3) in cases under clause (ii) of section 7(1)(b) where

7 02

(1968) 3 S.C.R.

market value is awarded.

The direction of the High Court is /'!,, modified accordingly.

The next claim is with regard to irrigational bunds, tanks and wejls.

The Collector awarded compensation .on the basis of Hirnayat and water rates of assessment.

The Revenue Tribunal confinned his award. The High Court set aside this award and directed the Collector to award compensation after further inquiry on the basis of twenty-five iimes the annual profits derivable from the properties.

This ruling is challenged by the State of Gujarat and also by the Taluqdars.

Mr. Bindra contended that the Tribunal's award should be restored. Mr. A. K.

Sen contended 1hat the compensation should be awarded on the basis of reinstatement value.

In our opinion, both .these c:in tentions should be rejected.

The duty of the Collector is to award the "market value".

The market value is the amount which the laml if sold in the open market by u willing seller might be expected to realise. ln the case of land the market value is generally ascertained on a consideration of the prices obtained by sale of adjaceni lands with similar advantages.

Where there are no sales o1' comparable lands, the value must be found in some other way.

One method is to take th.e annual income which the owner is expected to obtain from the land and to capitalise it by a number of years purchase.

The capitalised value is then taken as the market value. which a willing vendor mig:ht reasonably expefa to obtain from a willing buyer.

Tn some special cases awards have been given on the basis of the reinstatement value which is assessed according to the cost of acquiring an equally convenient land or premises.

Cripps on Compulsory Acquisition of Land. 11th ed., Arts. 4-203, p. 907 exrlains this method thus :-

"Before the Acquisition of Land Act, 1919, reinstatement value, instead of market value, was sometimes given so as to give proper effect to the principle of compensation on the basts Of value to the owner.

Generally it was only given in respect of property which was of such a nature (for example, a school. church. hospital, houe of exceptional character, business premises in which the business could be carried on under special conditions or by means of a special licence) that there was no market or general demand for such properiy; and a market value deducted from the income derived would not constitute a fair basis in assessing the value to the owner."

The measure of compensation for lands or premises taken under the Lands Clauses Act, 1845 was their value to the owner.

Jn special cases reinstatement value enabling the O)Vner to

GUJARAT v. VAKHTSINGHJI (Bachawat, /.) 703.

replace the lands or premises taken from him was taken to be the correct measure of this value.

This principle was later enacted in Rule 5 of section 2 of Acquisition of Land (assessment of compensation) Act, 1919 which is now replaced by Rule 5 of section 5 of the Land Compensation Act, 1961. In Raja Vyricherla Gajapatiraju v. The Revenue Divisional Officer, Vii.agapatam (1) Lord Romer said that the general principles for determining compensation under section 23 of the Land Acquisition Act, 1848 did not differ in any material respect from those upon which compensation was awarded under the Lands Clauses Act of 1845. In Harish Chandra Neogy v. Secretary of State for India(') and Province of West Bengal v. Raja Jhargram(1 ) it was suggested that in special cases the reinstatement value may be awarded as compensation under section 23 of the Land Acquisition Act.

For the purpose of this case it is sufficient to say that this method should not be adopted where the market value deduced from the income derived from the lands would fairly compensate the own.er and in no case can reinstatement value be given unless reinstatement in some other place is bona fide intended.

The High Court found that there was no intention to reinstate the bunds.

The owners could be fairly compensated by giving the market value deduced from 1 the estimated yield ..

The High Court rightly rejected the reinstatement method. The value of irrigational bunds, tanks and wells is not what they cost but what. they yield in annual income.

The High Court rightly adopted the yield basis of valuation. The Himayat assessment and water rates did not give the correct yield. The High Court therefore directed further inquiries into this claim.

The next claim for compensation is with regard to river and river beds.

The Collector and the. Tribunal rejected this claim but the High Court allowed it a.nd directed further inquiries. The

State of Gujarat challenges this ruling.

Now the taluqdars had no property in running water.

They were the owners of the river beds but the submerged river beds were of no value to them.

Counsel for the taluqdars therefore conceded that the High Crt's g canno~ be supported.

Before us they con' fined their claun under thts head to Bhathas . formed in the rivers and other portions of the river beds where crops could be raised. during some parts . .; if the year particularly during summer. <; o?nsel foF the State dtd not oppose further inquiries into this ltmtted claim for compensation.

We therefore set aside the directions of .the High Court in respect of river and river beds.

W~ direct . the Spec!31 Deputy Colltor to inquire into the claim for comp_ensati?n for Bhathas, 1f any, formed in the rivers, And other portions, 1f any, of the river beds where crops could' be~.

(I) 66 J, A. 104 at 113. '

(2) 25 C. W. N. 875.

(3) A. J.R. 1965 Cal. 392.

104 SUPllBME COUllT REPORTS [1968] 3 s.c.R.

Counsel for the taluqdars sought to challenge the findings of the High Court with regard to compensation for unbuilt village sites, trees, siJn road and non-irrigation al tanks and wells.

We find no error of principle in the award of compensation under these heads.

There is no ground for our interference in respect <>f these claiJns.

Mr. Bindra submitted that section 12 of the A\i<>lition Act makes the decision of the Tribunal final and conclusive and the High Court had no jurisdiction "> interfere with this decision, particularly in respect of solatium of 15 per centum and nonirrigational bonds, tanks and wells.

We are unable to accept this contention.

Article 227 of the Constitution gives the High Court the power of superintendence over all courts and tribunals throughou, l the territories in relation to which it eurcises jurisdictron. This jurisdiction cannot be limited or fettered by any Act of thc State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. It was the duty of the Revenue Tribunal to award compensation to the Taluqdars in accordance with the provisions of secs. 7 and 14 1lf the Act.

The High Court had jurisdiction to revise the decision of the Tribunal where the Tribunal on a misreadipg of the provisions of secs. 7 and 14 declined to do what was by those provisions of law incumbent on it to do.

Tested in this light it does not appear .that the High Court exceeded its jurisdiction under Art. 227 in revising the. decision of the Tribunal in respect of the solatium and irrigational bunds, tanks and . wells.

Numerous cases were pending before the Ravenue Tribunal in respect of corilpensation payable to the taluqdars under the Bombay Taluqdari Tenure Abolition Act.

To prevent miscarriage of justice it was necessary for the High Court to lay down general principles on which compensation should be assessed so that the Tribunal may act within the limits of their authority.

On finding that the Tribunal had misconceived its duties under secs. 7 and 14, the High Court could not only set aside its decision, but also direct it to make further inquiries after taking evidence. As pointed out in Hari Vishnu Kamath v. Syed Ahmed lshaque(') the High Court in the exercise of its supervisory jurisdiction under Art. 227 cannot only annul the decision of the Tribunal but can also issue further direction in the matter.

In the result, in modification of the High Court's decision in respect of solatium of 15 per centum on the market value, we direct that in all these cases the taluqdars be awarded solatium in accordance with this judgment.

We set aside the High Court's -decision with .regard to river and river bedS.

Instead, we. direct 1hat 1the Special Deputy Collector will inquire into the cla.tm for

(I) (1955) I S. C.R. 1104 at 1120.

GUJARAT v. VAKHTSINGHJI (Bachawat, !.) 705

compensation for Bhathas, if any, formed in the river and other portions of the river beds, if any, where crops could be raised lluring some parts of the year, particularly during the summer.

The Special Deputy Collector will make awards under these two heads after giving opPOrtunity to the parties to adduoe evidence Subject to these modifications, the appeals are dismissed and the decision of the High Court in other respeots is confirmed. As success is divided, there will be no order as to costs.

G.C.

';:

Appeals dimiissed with modifications.

692

STATE OF GUJARAT ETC

VAKHTSINGHJI SURSINGHJI VAGHELA & ORS. ETC

M. HIDAYATULLAH, C.J.

R. S. BACHAWAT

G. K. MITTER

K. S. HEGDE, JJ

Bombay Taluqdari Abolition Act

ss. 7 and 14

s. 14

s. 1

Constitution of India

Art. 227

ss. 11 and 14

Bombay Taluqdari Abolition Act, 1949

Art. 227

State of Gujarat

s. 14

Art. 227

s. 5

s. 14

s. 7(1)(b)

s. 11

Land Acquisition Act, 1894

s. 11

s. 15

s. 23

s. 24

Section 23(1)

Section 23(2)

s. 7(1)(b)

II of the Land Acquisition Act

s. 6

s. 7(i)(b)

Article 227

ss. 7 and 14

CML APPELLATE JURISDICTION

N. S. Bindra

S. P. Nayar

S 17 to 528

A. K. Sen

Bhuvanesh Kumari

I. B. Dadachanji

Ravinder Narain

M. H. Chhatrapati

Bhuvanesh Kumarl

M. H. Chhatri[1ati

N. A. Palkhivala

H. Chhatrapati

Bachawat

Art. 227

Bombay Taluqdari Abolition Act, 1949

Bombay Act LXII of 1949

Ahmedabad

Art. 227

Govind D. Patel

Bombay

J. B. Peile

L. Robertson

GUJARAT I'. VAKHTS!NGJIJI

Broach

sec. 2(1)

Section 4

Sections 22 and 23

Kaira

s. 22

January 24, 1950

August 15, 1950

Section 3

sec. 4

sec. 4

Gujarat Taluqdars Act, 1888

section 5

s. 5(2)(a)

sec. 23

Section 5

Section 6

Section 7

section 6

Section 17

Sections

8

Art. 31B

section 5(2)

Section SA was inserted by Bombay Act

section 5

s. 14

section 7

sec. 14( 1)

s. 7

section 22

Government of Bombay

October 2, 1914

April 13, 1914

sec. 22( 1)

Section 5(1)(a)

Palkhiwala

section 5

Rao Bahadur Kunwar Lal Singh

Zamindari

July 1, 1919

July 1, 1920

Section 88

Land Revenue of Estates Act, 1939

section 299(2)

Government of India Act, 1935

Spens

s. 299(2)

sec. 14

section 7

section 7(1)(b)(ili)

Section 7

Land Acquisition Act, 1894

sections 23 and 24

Land Acquisition Act, 1894

Section 7

sec. 6

sec. 7

section 11

Land Acquisition Act, 1894

sec. 11

sec. 15

Section 23

Section 23(2)

sec. 7

section 11

sec. 6

section 7(l)(b)

sec. 7

sections 23 and 24

Land Acquisition Act, 1894

s. 23

sec. 23

section 14(2)

sections 23 and 24

sec. 7

section 7(1)(b)

section 7(1)(b)

Bindra

A. K.

Arts. 4

section 2

section 5

Land Compensation Act, 1961

Romer

section 23

Land Acquisition Act, 1848

section 23

section 12

Article 227

Art. 227

Ravenue Tribunal

Art. 227


\ 706

JAMBU RAO SATAl'l'A KOCBEIU

NEMINA.Ill APPAYYA HANAMMANNAVER

April 10, 1968

[J. C. SHAH AND V. RAMASWAMI, JJ.]

Bomoay Tenancy and Agric11/t11ral Lr.ad• Act 67 of 1948-s.r. 34. 35. 70(mb), 84C & 85-Agreement to sell land wliicli if rformed wo11ld lead to purchtued liolding land in excess of ceiling prescribed-If enforceabie by a decree for specific perforn1ance.--WhetMr jurisdiction of civil court to aH'anl decree excluded by s..'f. 70(mb) or 84C.

The appellant agreed to sell to the respondent 41 acres of jirayat bod in Mysore, but failed to execute a conveyance. The respondent filed a suit for a decree for specific performance of the agreement and pos>eSSion

o[ the land.

The trial court dismissed the suit holding that the agreement, if enfom:d, would result in "transgn:ssioo of the provisions of th< Bombay Tenancy and Agricultural Lands Act 67 of 1948". Jn appeal. the High Court of Mysore granted a decree for specific performance.

In appeal lo this Court it was conlendod on behalf of the appellant that the rc'pondeot was already holding 31 acres of jirayat land at the time the :1g:n.-ement was entered into and by acquiring aoother 41 acres the resrondent's holding would ex""'<! the ceiling preschDed by s. S of Bombay Ac! 67 of 1948, and further more. that the Civil Court had no jurisdiction to entertain the suit for specific performance.

HELD : ( i) A eon tract for the sale of land entered into with the knowledge that the purchaser may bold land in excess of the ceiling is not void, and the seller cannot resist enforcement on the ground that, it permitted, it ,.; u result in transgression of the law. [711 C-DJ

By the acquisition declared invalid under s. 35. the land does not rcve1 t to the transferor; it is deemed to be in the ttansferees ownership and. on the Mamlatdar making a declaration that any land held in excess of the ceiling. the excess lB!ld vests in the Government. The statotory forfeiture incurred in the event of the transferee coming to hold land in excess of the <>eiling does not invalidate the transfer between the parties. [710 El There \\ilS nothing in the agreement. nor could it be implied from the circumstam:cs. that it was the object of the parties that the provisiom of the Act relating to the ceiling should be transgressed. The mere possibility that the nspondent may not have disposed of his original holding at the date of the acquisition of title would not render the object of the agreement such. that. if permitted. it would defeat the provisions of arty law. 17!0 HJ

(ii) There \Vas no substance in the contention that the Civil Court had no jurisdiction to entertain and decree the suit for specific perfor mance of an agreement to sen land. Power to decide whether the transfer or acquisition is invalid under s. 84C and to dispose of the land as provided in that section is conferred upon the Mamlatdar, and the civil cOurt has no jurisdiction in that behalf. But there is nolhing in cl.

(mb) of s. 70 or in s. 85 which excludes-the jurisdiction of the cMl court to entertain a suit for specific performance of a contract to Bell land. An inquiry under s. 84C to determine whether the transfer .or

JAMBU llAO V. NEMINATH (Shah, J.) 707

A acquisition is inv:ilid may be made only after the acquisition of tiUe p'1t>Uant to a decree for specific performanee or otherwise. [711 D-GJ

CIVIL APPELLATE JURISDICTION ; Civil Appeal No. 932 of 1965.

Appeal from the judgment and deaee dated August 20, 1964 of the Mysore High Court in Regular Appeal No. 257 of 1960.

M. C. Chagla, B. P. Singh and R. B. Datar, for the , appellant.

S. V. Gupte, N. D. Mandigi and Bhuvanesh Kumari, for the respondent.

C The Judgment of the Court was delivered by

Sllah, J. The appellant agreed to sell to the respondent Survey Nos. 5 & 12 of village Pattihal in District Belgaum, Mysore

State, admeasuring 41 acres 26 gunthas of jirayat land for Rs. 32,000/-. The appellant having failed to execute a conveyance of the land, the respondent commenced an action in the Court of D the Civil Judge, Senior Division, Belgaum, for a decree for specific performance of the agreement and for possession of the land. The trial court dismissed the suit holding that the agreement, if enforced, would result in "transgression of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948". Jn appeal, the High Court of Mysore granted a decree for specific E performance. With certificate granted by the High Court, this appeal has been preferred by the appellant.

The trial court and the High Court have concurrently found that the appellant failed to prove that the contract was abandoned by mutual agreement, and nothing more need be said about the plea raised by the appellant. Two questions survive for decision F in this appeal ;

(I) Whether enforcement of the contract would result in transgression of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948; and

(2) Whether the civil court had jurisdiction to entertain the suit for specific performance.

By s. 5 of. the Bombay Tenancy and Agricultural Lands Act 67 of 1948, as 1t stood at the relevant time, it was provided ;

"(l) For the purj, oses of this Act, the ceiling area of land shall be-

(a) 48 acres of Jirayat land, or . (b) 24 acres of seasonally irrigated land or paddy or nee land, or

(c) l2 acres of perennially irrigated land.

708 SUPllKB <X>tD.T IBPOJl.TS

[1!168) 3 S.C.R.

(2) Where the land held by a person consists of two or more kinds of land specified in sub-section (1), the ceiling area of sll4iji holding shall be determined on the basis of one acre of perennially irrigated land being equal to two acres of seasonally irrigated land or paddy or rice land, or four acres of j1'rayat land."

_Section 34(1) of the Act provided:

"Subject to the provisions of section 35, it shall not be lawful, with effect from the appointed day, for any person to hold, whether as OWllflr or tenant or partly as owner and partly as tenant, Jana in excess of the ceiling area." The expression "to hold land" is not defined in the Tenancy Act.

It is defined in the Land Revenue Code, and by virtue of s. 2(21) of the Tenancy Act it has the same meaning which it has under the Bombay Land Revenue Code, 1879, i.e., "t() be lawfully in possession of land, whether such possession is actual or not" : s. 3(11) of the Bombay Land Revenue Code, 1879. Section 35 provided that :

"Where on account of gift, purchase, assignment, lease, surrender or any other kind of transfer inter vivos or by bequest except in favour of recognised heirs and land comes into the possession of any person and in consequence thereof, the total land held by such person exceeds the area, which he is authorised to hold under section 34, the acquisition of such excess land shall be invalid.

Explanation. " .• The material part of s. 84C provided :

"(1) Where in respect of the transfer of acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the \)OOvisions of this. Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not invalid.

(2) If after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land is invalid, he shall make an order dec!aring the transfer or acqllisition to be invalid.

(3) On the declaration made by the Mamlatdar under sub-section (1) ,-

JAMBU RAO v. NBMINATH (Shah,/.) 70&

A "(a) the land shall be deemed to vest in the State

Government, free from all encumbrances lawfully subsisting thereon on the date of such vesting, and shall be disposed of in the manner provided in sub-section (4); ..

The appellant resisted the claim of the respondent for specific performance of the agreement of sale on the plea that the respondent was already holding 31 acres 2 gunthas of jirayat land, and by acquiring 41 acres 26 gunthas of jirayat land, the respondent's holding would exceed the ceiling prescribed by the statute.

The evidence on the record about the area of lands held by the respondent at the relevant time is obscure. The agreement was dated July 20, 1958. On April 1, 1960 the respondent filed a statement in the Court that, barring lands which were liable to be excluded in determining whether the holding exceeded the ceiling, he was in possession of 11 acres 1 guntha of jirayat land. If that holding were to be taken into account, and if in pursuance of a decreee for specific performance the respondent acquired possession of the land agreed to be sold, his total holding would exceed the ceiling.

In the trial court the parties proceeded to trial on the footing that if the agreement was enforced specifically, the holding of the respondent would exceed the ceiling area. In appeal, the High Court observed that there was no evidence that the respondent was a holder of land in excess of the ceiling area on the date of the agreement nor was there evidence to show that he was holding an area of land in excess of the ceiling area on the date of the suit or even at the date of the statement dated April 1, 1960. and therefore s. 34 had no relevance. The High Court observed in the last paragraph of the judgment that they had not recorded any finding about the actual area of jirayat land in the possession of the respondent at any point of time either on the date of the suit or on April 1, 1960, and the question was left open as desired by the parties, Since in the trial court the parties chose to go to the trial on the footing that if the contract is specifically enforced, having regard to the holding of the respondent, the total area would exceed the ceiling, we proceed to decide the appeal on that footing.

By s. 23 of the Contract Act, consideration or object of an agreement i~ unlawful if it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent. Both the parties to the contract are agriculturists. By the agreement the appellant agreed to sell jirayar

710 SUPREME COURT Rll'PORTS

(1968) 3 S.C.R.

A . land admeasuring 4lacres 26 guntllilS for a price of .Rs. 32,000/-.

The consideration of the agreement per "se was not unlawful, for there is no provision in the Act which expressly or by implication forbids a contract for sale of agricultural.lands between two agriculturists. Nor is the object of the agreement to defeat the provisions of any law. The Act has imposed no restriction upon the transfer of agricultural lands from one agriculturist to another.

It is true that by s. 35 a person who comes to hold, -after the appointed day, agricultural land in excess of the ceiling, the lands having been acquired either by purchase, assignment, lease, surrender or by beg_uest, the acquisition in excess of the ceiling is invalid. The expression "acquisition of such excess land shall be invalid" may appear somewhat ambiguous. But when the scheme of the Act is examined, it is clear that the Legislature has not declared the transfer or bequest invalid, for s. 84C provides that

the land in excess of the ceiling shall be at the disposal of the Government when an order is made by the Mamlatdar. The invalidity of the acquisition is therefore only to the extent to which the holding exceeds the ceiling prescribed by s. 5, and involves the consequence that the land will vest in the Government.

i By the acquisition declared invalid under s. 35, the land does not revert to the transferor or the testator; the land is deemed to be of the ownership of the person acquiring it by transfer or by bequest andon the Mamlatdar making the order, the land in excess of the ceiling vests in the Government. It only will mean

that the purchaser will not be entitled ta hold the land in excess . E of the ceiling and the excess will be at the disposal of the Government.

An agreement to sell land does not under the Transfer of Property Act create any interest in the land in the purchaser. By agreeing to purchase la'nd, a person cannot be said in law to hold that land. It is Ol)ly when land is conveyed to the purchaser that he holds that land. Undoubtedly the respondent was holding some area of land at the date of the agreement and at the date of the suit, but on that account it cannot be inferred that by agreeing to purchase \and under the agreement in question his object was to hold in excess of the ceiling. It was open to the respondent to transfer or dispose of the land held by him to another agriculturist. The Act contins no general restrictions upon such transfers, and unless at the date of the acquisition the transferee holds land in excess . of the ceiling, the acquisition to the extent of the excess over the ceiling will' not be invalid. There is nothing in the agreement, nor can it be implied from the circumstances, that it was the object of the parties that the provisions of the Act relating to the ceiling should be transgressed.

The mere possibility that the respondent may not have disposed of his original holding at the date of the acquisition of title pur:

J, A.MBU RAO v. NEMINATH (Shah, J.) 711

suant to the agreement entered into between hinl and the appellant will •not, in our judgmeut, render the object of the agreement such, that, if permitted, • it would defeat the provisions of any law.

The Court, it is true, will not enforce a contract which is expressly or inlpliedly prohibited by statute, whatever may be the intention of the parties, but there is nothing to indicate .that the Legislature has prohibited a contract to transfer land betv<een one 11griculturist and another. The inability of the transferee to hold land in excess of the ceiling prescribed by the

statute; has no effect upon the contract, or the operation of the transfer.

The statutory forfeiture incurred in the event of the transferee coming to hold land in excess of the ceiling does not invalidate the transfer between the parties.

We hold that a oontract for purchase of land entered into with the knowledge that the purchaser may hold land in excess of the ceiling is not void, and the seller callilot resist enforcement thereof on the ground that, if pennitted, it will result in transgression of the law.

There is no substance in the argument that the civil court had no jurisdiction to entertain and decree a suit for specific performance of an agreement tq sell land. Section 70 of the Act sets out the duties and functions of the Mamlatdar and, amongst the duties and functions which the Mamlatdar for the purpose of the Act shall discharge or perform is the duty and function to decide under s. 84C whether a transfer or acquisition of land is invalid and to dispose of the land as provided in s. 84C .. Section 85 of the Act excludes from the jurisdiction of the civil court proceedings to settle, decide or deal with questions which are required by s. 70 (mb) to be settled, decided or dealt with by the authorities specified in that behalf. Power to decide whether the transfer or acquisition is invalid under s. 84C and to dispose of the land as provided in that section is undoubtedly conferred upon the Mamlatdar, and the civil court has .no jurisdiction in that behalf.

But there is nothing in cl. (mb) of s. 70 which excludes the jurisdiction of the civil cdurt to entertain a suit for specific performance of a contract to sell land. An inquiry under s. 84C to determine whether the transfer or acquisition is invalid m'y be made only after the acquisitjon of title pursuant to a decree for specific perfonnlince or otherwise. The civil court has no juris• diction to detennine whether the acquisition is invalid, but there is nothing in s. 70 or in other provisions of the Act which excludes the civil court's jurisdiction to decree specific perfonnance of a contract to transfer land.

The apPeal therefore fails and is dismissed with costs.

R.K.P.S.

Appeal dismissM. 8SupC1/68-6

NEMINA.Ill APPAYYA HANAMMANNAVER

April 10, 1968

C. SHAH

V. RAMASWAMI, JJ.

High Court of Mysore

s. 35

s. 84C

s. 70

s. 85

s. 84C

Shah

Mysore High Court

M. C. Chagla

B. P. Singh

R. B. Datar

S. V. Gupte

N. D. Mandigi

Bhuvanesh Kumari

Sllah

Pattihal

Belgaum

Mysore

s. 5

Section 34(1)

section 35

s. 2(21)

s. 3(11)

Bombay Land Revenue Code, 1879

Section 35

section 34

s. 84C

section 84B

July 20, 1958

April 1, 1960

s. 34

s. 23

s. 35

s. 84C

s. 5

s. 35

Transfer of Property Act

Section 70

s. 84C

s. 84C

Section 85

s. 70

s. 84C

s. 70

s. 84C

s. 70