Gangadharrao Narayanrao Majumdar Vs.
The State of Bombay & ANR [1960] INSC 166 (3 October 1960)
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L.
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
CITATION: 1961 AIR 288 1961 SCR (1) 943
CITATOR INFO :
R 1961 SC 291 (2) R 1965 SC 632 (11)
ACT:
Inams--Abolition of Personal
Inams--Constitutional validity of Enactment--" Estate " " Right
in an estate ", meaning of--Bombay Personal Inams Abolition Act, 1952
(Bom. 42 of 1953), ss. 4, 5, 7, 17--Bombay Land Revenue Code, 1879 (Bom. 5 of
1879), s. 3(5)--Constitution of India, Arts. 31, 31--A.
HEADNOTE:
The appellants held personal inams which were
governed by Bombay Acts Nos. II and VII of 1863 by virtue of which they held
their lands on payment of land revenue which was less than the full assessment.
After. the. coming into force of the Bombay Personal Inams Abolition Act, 1952,
the appellants who were affected by it Challenged the validity of the Act on
the grounds, inter alia, (i) that the property which had been dealt with under
the Act was not an estate inasmuch as what ss. 4 and 5 extinguished was the
right of the inamdar to appropriate to himself the difference between the full
assessment and 944 the quit rent and this was not an estate within the meaning
of Art. 31-A of the Constitution of India, and (2) that no compensation bad
been provided in the Act for taking away the property of the appellants.
Held: (i) that the right of the inamdar to
appropriate to himself the difference between the full assessment and the quit
rent was a right in respect of land revenue and was therefore a right in an
estate by virtue of the definition in Art. 31-A(2)(b). Such a right also fell
under S. 3(5) Of the Bombay Land Revenue Code, 1879, and as such it was an
estate under Art. 31-A. Accordingly, the Act when it extinguished or modified
the rights of inamdars in inam estates was protected by Art. 31-A.
(2) that sub-s. (5) Of s. 17 of the Act under
which no compensation was to be paid for the loss to the inamdar of what he
used to get because of the difference between the quit rent and the full
assessment, was not invalid as Art.
31-A saved the Act from any attack under Art.
31 which was the only Article providing for compensation.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 155 to 160 of 1956.
Appeals from the judgments and orders of the
Bombay High Court dated July 6, 1954, in Special Civil Applications Nos.
393, 395, 409 and 632 of 1954; July 19, 1954,
in Special Civil Application No. 1205 of 1954; and July 30, 1954, in Special
Civil Application No. 1309 of 1954.
Purshottam Trikamdas, V. M. Limaye, E.
Udayaratnam and S. S. Shukla, for the appellants.
H. N. Sanyal, Additional Solicitor-General of
India, N. P. Nathwani, K. L. Hathi and R. H. Dhebar, for the respondents.
1960. October 3. The Judgment of the Court
was delivered by WANCHOO J.-These six appeals on a certificate granted by the
Bombay High Court raise a common question as to the constitutionality of the
Bombay Personal Inams Abolition Act, No. XLII of 1953, (hereinafter called the
Act) and will be disposed of by this judgment. The appellants hold personal
inams which are covered by Bombay Acts Nos. 11 and VII of 1863. The Act was
attacked on a number of grounds in the High Court of which only two have 945
been urged before us, namely, (i) that the property which has been dealt with
under the Act is not an estate and (ii) that no compensation has been provided
in the Act for taking away the property of the appellants: The writ petitions were
opposed by the State of Bombay and the main contention on its behalf was that
the Act was protected under Art. 31-A of the Constitution.
Before we deal with the two points raised
before us, we should like briefly to refer to the rights which holders of
personal inams had by virtue of Bombay Acts Nos. II and VII of 1863. Act No. 11
extended to certain parts of the Presidency of Bombay and dealt with holders of
lands in those parts who were holding lands wholly or partially exempt from the
payment of government land-revenue. The Act provided for the cases of holders
of such lands whose title to exemption had not till then been formally
adjudicated.
It laid down that if such holders of lands
consented to submit to the terms and conditions prescribed in the Act in
preference to being obliged to prove their title to the exemption enjoyed by
them, the Provincial Government would be prepared to finally authorise and
guarantee the continuance, in perpetuity, of the said land to the said holders,
their heirs and assigns upon the said terms and subject to the said conditions.
The main provision of the Act in this respect was that such holders of land
would be entitled to keep their lands in perpetuity subject to payment of (i) a
fixed annual payment as nazrana in commutation of all claims of the Crown in
respect of succession and transfer which shall be calculated at the rate of one
anna for each rupee of assessment and (ii) a quit-rent equal to one-fourth of
the assessment. There were other provisions in the Act for those cases where
the holders of such lands were not prepared to abide by the conditions of the
Act and wanted their claims to be adjudicated; but we are not concerned with
those provisions for present purposes. Thus the main right which the holders of
lands got by Act 11 was that they held their lands on payment of one-fourth of
the assessment instead of full 946 assessment plus further one-sixteenth of the
assessment;
thus they paid in all five annas in the rupee
of the full assessment and retained eleven annas in the rupee for themselves.
Act No. VII dealt with similar holders of
lands in the remaining parts of the Presidency of Bombay, and made similar
provisions with this difference that such holders of lands were to pay two
annas for each rupee of the assessment as quit-rent under s. 6. Thus those who
came under Act VII paid only two annas in the rupee of the assessment and
retained fourteen annas in the rupee for themselves.
We now turn to the provisions of the Act. By
s. 2(c) inamdar " is defined as a holder of personal inam and includes any
person lawfully holding under or through him.
Section 2(d) defines an " inam village
or " inam land " while s. 2(e) defines " personal inam Section 3
provides that the Act will not apply to certain inams including devasthan inams
or inams held by religious or charitable institutions. The Explanation to the
section lays down that by the term " inams held by religious or charitable
institutions " will be meant devasthan or dharmadaya inams granted or
recognized by the ruling authority for the time being for a religious or
charitable institution and entered as such in the alienation register kept
under s. 53 of the Bombay Land Revenue Code, 1879 (hereinafter called the
Code), or in the records kept under the rules made under the Pensions Act, 1871.
Thus so far as religious or charitable institutions were concerned those inams which
they held from the very beginning as devasthan or dharmadaya inams and which
were entered in the relevant records were out of the provisions of the Act.
Section 4 extinguishes all personal inams and save as expressly provided by or
under the provisions of the Act, all rights legally subsisting on the said date
in respect of such personal inams were also extinguished subject to certain
exceptions which are, however, not material now. Section 5 provides that all
inam villages or inam lands are and shall be liable to the payment of landrevenue
in accordance with the provisions of the Code or the 947 rules made thereunder
and the provisions of the Code and the rules relating to unalienated lands
shall apply to such lands. It further provides that an inamdar in respect of
the inam land in his actual possession or in possession of a person holding
from him other than an inferior holder (subject to an exception which we shall
mention just now) would be primarily liable to the State Government for the
payment of land-revenue due in respect of such land held by him and shall be
entitled to all the rights and shall be liable to all obligations in respect of
such land as an occupant under the Code or the rules made thereunder or any
other law for the time being in force. Thus by s. 5 the holder of a personal
inam became for all practical purposes an occupant under the Code liable to pay
full land-revenue and the advantage that he had under Acts II and VII of 1863
of paying only a part of the land-revenue and retaining the rest for himself
was taken away. The exception which we have refer. red to above was where the
inferior holder holding inam land paid an amount equal to the annual assessment
to the holder of the personal inam, such inferior holder would be liable to the
State Government and would become an occupant of the land under the Code.
Section 7 then vests certain lands like public roads, paths and lanes, the
bridges, ditches, dikes and fences, the bed of the sea and harbours, creeks
below high water mark and of rivers, streams, nallas, lakes, wells and tanks,
and all canals, water-courses, all standing and flowing water, all unbuilt
village sites, all waste lands and all uncultivated lands (excluding lands used
for building or other non-agricultural purposes) in the State Government and
extinguishes the rights of inamdar in them. Section 8 deals with right to trees
and s. 9 with right to mines and mineral products.
Section 10 provides for compensation for
extinguishment of rights under s. 7 while s. 11 gives a right of appeal from
the order of the Collector under s. 10. Sections 12 to 16 deal with procedural
matters and s. 17 provides for payment of compensation for extinction or
modification of an inamdar's right which may not be covered by s. 10. Subsection
(5) 948 of s. 17 however says that " nothing in this section shall entitle
any person to compensation on the ground that any inam village or inam land
which was wholly or partially exempt from the payment of land revenue has been
under the provisions of this Act made subject to the payment of full assessment
in accordance with the provisions of the Code ".
Section 17-A provides for the issue of bonds
while s. 18 provides for the application of the Bombay Tenancy and Agricultural
Lands; Act, 1948, to any inam village or. inam land or the mutual rights and
obligations of an inamdar and his tenants. Section 19 provides for making of
rules and s. 20 deals with repeals and amendments.
It will be seen from this analysis of the Act
that the main provisions are ss. 4, 5 and 7. So far as s. 7 is concerned, there
is provision for compensation with respect to lands vested in the State by
virtue of that section. But no compensation is provided for the rights
extinguished by as.
4 and 5. As we have seen already the main
right of an inamdar was to hold his lands on payment of land revenue which was
less than the full assessment and it is this right which has been abolished by
ss. 4 and 5 and the inamdar will now have to pay the full assessment. No
compensation has been provided for the loss which the inamdar suffers by having
to pay the full assessment.
This brings us to the first contention. On
behalf of the appellants it is urged that what ss. 4 and 5 extinguish is the
right of the inamdar to appropriate to himself the difference between the full
assessment and the quit-rent, and this is not an estate within the meaning of
Art, 3 1 A of the Constitution. The relevant provisions in Art. 31-A for
present purposes aref these:" 31-A (1)-Notwithstanding anything contained
in art. 13, no law providing for(a) the acquisition by the State of any estate
or of any rights therein or the extinguishment or modification of any such
rights, or (b)....................
(c)...................
949 (d)...................
(e)...................
shall be deemed to be void on the ground that
it is inconsistent with or takes away or abridges any of the rights conferred
by art. 14, art 19 or art. 31 ;
Provided...............
(2) In this article(a) the expression '
estate' shall, in relation to any local area, have the same meaning as that
expression or its local equivalent has in the existing law relating to land
tenures in force in that area, and shall also include any jagir, inam or muafi
or other similar grant and in the States of Madras and Kerala any janmam right;
(b) the expression 'rights' in relation to an
estate shall include any rights vesting in a proprietor, sub-proprietor,
under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and
any rights or privileges in respect of land revenue ".
It will be, clear from the definition of the
word estate " in Art. 31-A(2)(a) that it specifically includes an "
inam " within it. As such it would be in our opinion idle to contend that
inams are not estates within the meaning of the expression " estate "
for the purpose of Art. 31-A. The Act specifically deals with inams and would
thus be obviously protected under Art. 31-A from any attack under Art. 14, Art.
19 or Art. 31. It is, however, urged that the right of the inamdar to
appropriate to himself that part of full assessment which was left over after
he had paid the quitrent to the Government is not a right in an estate. This
contention also has no force. Inams being estates, the right of the inamdar to
retain part of the full assessment over and above the quit-rent payable to the
Government arises because he holds the inam-estate. The right therefore can be
nothing more than a right in an estate.
Besides the definition of the expression
" rights " in Art.
31-A(2)(b) makes the position clear beyond
all doubt, for it provides that the rights in relation to an estate would
include any rights or privileges in respect of land revenue 121 950 Even if it
were possible to say that the right of the inamdar to appropriate to himself
the difference between the full assessment and the quit-rent was not a right in
an estate as such, it would become a right in an estate by virtue of this
inclusive definition for the inamdar's right could only be a right or privilege
in respect of landrevenue. Besides, it is clear that the right in question
falls under s. 3(5) of the Code and as such also it is an estate under
Art.31-A. The contention of the appellants therefore that inams dealt with by
the Act are not covered by the expression " estate " in Art. 31-A
fails. Their further contention that their right to retain the difference
between full assessment and quit-rent is not a right in an estate also fails.
The Act therefore when it extinguishes or modifies the rights of inamdars in
the inam estates is clearly protected by Art. 31-A.
The next contention is that the Act does not
provide for compensation and is therefore ultra vires in view of Art.
31. We find, however, that the Act has
provided for compensation under s. 10 so far as that part of inam lands which
are vested in the State by s. 7 are concerned.
Further s. 17 provides for compensation in a
possible case where anything has been left out by s. 7 and the inamdar is
entitled to compensation for it. It is true that by sub s.
(5) of s. 17 no compensation is to be paid
for the loss to the inamdar of what he used to get because of the difference
between the quit-rent and the full assessment. It is however clear that Art.
31-A saves the Act from any attack under Art. 31 which is the only Article
providing for compensation. In this view of the matter the constitutionality of
the Act cannot be assailed on the ground that it provides no compensation for
extinction of certain rights.
There is no force in these appeals and they
are hereby dismissed with costs. One set only of hearing costs.
Appeals dismissed.
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