The Collector of South Satara & ANR
Vs. Laxman Mahadev Deshpande & Ors [1963] INSC 36 (13 February 1963)
13/02/1963 SHAH, J.C.
SHAH, J.C.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
HIDAYATULLAH, M.
GUPTA, K.C. DAS
CITATION: 1964 AIR 326 1964 SCR (2) 48
CITATOR INFO:
R 1973 SC 190 (3) R 1980 SC1759 (3) E&R
1982 SC 887 (29)
ACT:
Watan lands--Resumption by Government--Nature
of the tenure of land held originally as watan land, after commutation of
service-Bombay Hereditary Offices Act, 1874 (III of 1874), ss. 4,15 (1) (2),
cl. (3), 22--Loss of Watan rights in land --Grant of compensation if
contemplated--Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 (Bom.
LX of 1950), ss. 3, 4, 6, 9 (1) (2) (3) (4).
HEADNOTE:
On abolition of his watan, the respondent
applied to the Collector claiming compensation under s. 9 of the Bombay
Paragana and Kulkarni Watans (Abolition) Act, 1950, for extinction of his right
in the watan land, and of his "right to enjoy part of the land
revenue." The Collector rejected the application and in appeal the order
was affirmed by the Revenue Tribunal. The High Court in a petition under Art.
227 of the Constitution set aside the order
of the Collector and directed him to assess and pay compensation to the
respondent under s. 9 (1) of the Act.
Held, that the watan property-if any-the
hereditary ice, and the rights and privileges attached thereto, together 49
constitute a watan, and a hereditary ice does not lose its character merely
because the service originally appertaining to the ice has ceased to be
demanded. Commutation of service does not in the absence of an express
agreement to that effect alter the tenure of the land held as watan. By
agreement, the State may relieve the holder of the ice and his successors of
the duty to perform the service for which the grant was made,but the ice and
the grant continue, subject to the terms of the settlement under s. 15 of the
Bombay Hereditary Offices Act, 1874.
Appaji Bapuji v. Keshav Shamrav, (1890) 1. L.
R. 15 Bom. 13 and Bachharam Datta Patil v. Viswanath Pundalik Patil, [1956] S.
C. R. 675, referred to.
Held, further, that after the commutation
settlement, the holder being relieved of the obligation to perform service, the
ice of watandar survives in name only but the land granted as watan remains
subject to the restrictions imposed by the Watan Act. By the regrant of the
land in occupancy right, on abolition or extinction of the watan, the holder is
not in truth prejudicially affected. Loss of watan rights in land, and the watan
ice is compensated by the regrant of occupancy rights in the land. Grant of
compensation was contemplated under sub-s. (2) of s. 9 of the Bombay Paragana
and Kulkarni Watans (Abolition) Act for abolition, extinction or modification
of rights other than the rights of a watandar, to land or cash allowance or
remission of land revenue.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 289 of 1961.
Appeal by special leave from the judgment and
order dated February 6, 1959, of the Bombay High Court in Special Civil Appeal
No. 2647 of 1958.
M. C. Setalvad, C. K. Daphtary Solicitor
General of India, S. B. Jathar and R. H. Dhebar, for the appellants.
S. G. Patwardhan and A. C. Ratnaparkhi, for
respondent No. 1.
50 1963. February 13. The judgment of the
Court was delivered by SHAH J.-With special leave, the Collector of South
Satara has appeared against the order of the High Court of judicature at Bombay
directing him to assess compensation payable to the respondent under s. 9 (1)
of the Bombay Pargana and kulkarni Watans (Abolition) Act, 1950.
Laxman Mahadev Deshpande-hereinafter called
'the respondent'-was the holder of Paragana Watan land bearing Survey Nos.
503/2. and 504/1 in Mouza Aitwade, Taluka Valve, District South Satara.
Performance of service in respect of the Watan had been commuted under an
arrangement made in or about 1864 under a commutation settlement popularly
known as "Gordon Settlement" whereby the holder was, on agreeing to
pay a fixed sum, relieved of the obligation to perform service as a Village
Officer.
The Legislature of the State of Bombay
enacted an Act called the Bombay Paragana and Kulkarni Watans (Abolition) Act
LX of 1950, which abolished all Paragana and Kulkarni Watans.
The respondent applied to the Collector of
South Satara for an order under s. 9 of the Act awarding Rs. 10,479-2-8 as
compensation for extinction of his right in the watan land, and of his
"right to enjoy part of the land revenue." By his order dated April
29, 1957, the Collector rejected the application, and the order of the
Collector was affirmed by the Bombay Revenue Tribunal in appeal under s. 9 (4)
of the Act. But in petition under Art. 227 of the Constitution the High Court
of Bombay set aside the order of the Collector and directed that officer to
assess and pay compensation to the respondent under s. 9 (1) of the Abolition
Act.
The land was granted to an ancestor of the
respondent as remuneration for performance of Paragana service sometime in the
sixteenth century 51 by the Ruler of Satara, and that grant was confirmed by
the British Government. The original grant and the confirmation sanad have not
been produced, but it is common ground between the parties that the grant was
of the soil and not merely of the royal share of revenue. In adjudging the
claim made by the respondent for compensation under s. 9 of the Bombay Paragana
and Kulkarni Watans (Abolition) Act it is necessary in the first instance to
ascertain the true character of the rights of a watandar in the land granted as
remuneration for performance of service and the effect of the commutation
settlement, in the light of the material provisions of the Bombay Hereditary
ices Act, III of 1874, commonly known as the Watan Act. By s. 4 of the Watan
Act `Watan property' is defined as meaning-"'moveable or immovable
property held, acquired, or assigned for providing remuneration for the
performance of the duty appertaining to an hereditary ice x X" 'Hereditary
ice' is defined as meaning "every ice held hereditarily for the
performance of duties connected with the administration or collection of the
public revenue or with the village police, or with the settlement of
boundaries, or other matters of civil administration. The expression includes
such ice even where the services originally appertaining to it have ceased to
be demanded.
The watan property, if any, and the
hereditary ice and the rights and privileges attached to them together
constitute the watan" and the expression `watandar' means a person having
an hereditary interest in a watan : it includes a person holding watan property
acquired by him before the introduction of the British Government into the
locality of the watan, or legally acquired subsequent to such introduction, and
a person holding such property from him by inheritance. Section 15 of the Act
provides for commutation of service.
By sub-s. (1) it is provided :
"The Collector may, with the consent of
the 52 holder of a watan, given in writing, relieve him and his heirs, and
successors in perpetuity of their liability to perform service upon such
conditions, whether consistent with the provisions of this Act or not, as may
be agreed upon by the Collector and such holder." By sub-s. (2) which was
repealed by Act XVI of 1895, it was provided :
"'Any settlement made for this purpose
before the date of this Act coming into force by any Collector or other officer
acting on behalf of Government with the holder of any watan shall have the same
force as if made under this Act." Clause (3) provides :
"Every settlement made or confirmed
under this section shall be binding upon both the State Government and the
holder of the watan and his heirs and successors." It is clear that the
watan property, if any, the hereditary ice, and the rights and privileges
attached thereto, together constitute a watan and a hereditary ice does not
lose its character merely because the service originally appertaining to the
ice has ceased to be demanded.
Commutation of service does not therefore, in
the absence of an express agreement to that effect alter the tenure of the land
held as watan. By agreement, the State, for consideration, may agree to relieve
the holder of the ice and his successors of the duty to perform the service for
performance of which the grant was made, but the ice and the grant continue,
subject to the terms of the settlement under s. 15 of the Bombay Hereditary
ices Act, 1874.
In Appaji Bapuji v. Keshav Shamrav (1), the
nature of the tenure of land held originally as (1) (1890) I.L,R. 15 Bow. 13.
53 watan.land, after commutation of service,
fell to be determined before the Bombay High Court, Sargent C. J., observed at
p. 23 :
"What is termed a Gordon Settlement was
an arrangement-- entered into in 1864 by a Committee, of which Mr. Gordon, as
Collector, was chairman, acting on behalf of Government with the vatandars in
the Southern Maratha Country, by which the Government relieved certain
vatandars in perpetuity from liability to perform the services attached to
their ices in consideration of a 'judi' or quit-rent charged upon the vatan
lands. x x x x x x the reports of Mr. Gordon's Committee on the Satara and
Poona Districts and their correspondence with Government can, we think, leave
no doubt that the settlements made by that committee, unless it was otherwise
specially provided by any particular settlement, were not intended by either
party to these settlements, to convert the vatan lands into the private
property of the vatandars with the necessary incident of alienability, but to
leave them attached to the hereditary ices, which although freed from the
performance of service remained intact, as shown by the definition of
hereditary ice in the declaratory Act III of 1874." But the Commutation
settlement does not confer an indefeasible title to the grantee, for the right
affirmed by the settlement under s. 15 (3) of the Watan Act is liable to be
determined by lapse, confiscation or resumption (s. 22 of the Watan Act). The
State having created the watan, is entitled to put an end to the watan i. e. to
cancel the watan and to resume the grant : Bachharam Datta Patil v. Vishwanath
Pundalik Patil (1). Therefore if there be mere commutation of service, the
watan ice ordinarily (1) [1956] S.C.R. 675.
54 survives without liability to perform
service, and on that account the character of watan property still remains
attached to the grant. But the State Government may abolish the ice and release
the property from its character as watan property.
It is in the light of these features of the
watan and the property granted for remuneration of the Watandar that the
relevant provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act,
have to be considered in adjudging the right to receive compensation claimed by
the respondent on abolition of his watan. By s. 3 of the Abolition Act, it is
provided that :
"With effect from and on the appointed
day, notwithstanding anything contained in any law, usage, settlement, grant,
sanad or order- (1) all Paragana and Kulkarni watans shall be deemed to have
been abolished ;
(2) all rights to hold ice and any liability
to render service appertaining to the said watans are hereby extinguished;
(3) subject to the provisions of section 4,
all watan land is hereby resumed and shall be deemed to be subject to the
payment of land revenue under the provisions of the Code and the rules made
thereunder as if it were an unalienated land :
Provided that such resumption shall not
affect the validity of any alienation of such watan land made in accordance
with the provisions of 55 section 5 of the Watan Act or the rights of an
alience thereof or any person claiming under or through him;
(4) all incidents appertaining to the said
watans are hereby extinguished." The material part of s. 4 provides that :
"A watan land resumed under the
provisions of this Act shall x x x x be regranted to the holder of the watan to
which it appertained, on payment of the occupancy price equal to twelve times
of the amount of the full assessment of such land x x x x x x and the holder
shall be deemed to be an occupant within the meaning of the Code in respect of
such land x x x; all the provisions of the Code and rules "relating to
unalienated land shall, subject to the provisions of this Act, apply to the
said land:" By s. 6 right to compensation in lieu of cash allowance or
land revenue is granted. It provides :
"6. Notwithstanding anything contained
in any law, usage, settlement, grant, sanad or order,- (1) a sum equal to seven
times the amount of the cash allowance due to a holder on the appointed day of
a watan in respect of which a commutation settlement has been effected, shall
be paid to such holder;
(2) in the case of any land or village, in
respect of which the watan property consists of the whole or a part of the land
revenue of such land or village, a sum equal to ten times the 56 amount of such
land revenue shall be paid to the holder x x x x x X." Section 9 provides
for assessment and payment of compensation for the abolition, extinction or
modification by virtue of s. 3 of rights in property not provided for in the
Act. Sub-section (1) provides :
"If any person is aggrieved by the
provisions of this Act as abolishing, extinguishing or modifying any of his
rights to or interest in property and if compensation for such abolition,
extinguishment or modification has not been pro- vided for in the provisions of
this Act such person may apply to the Collector for compensation."
Sub-section (2) prescribes the procedure of an application for compensation and
sub-s. (3) precludes the grant of compensation to any person on the ground that
any watan land which was wholly or partially exempt from the payment of land
revenue has been under the provisions of the Act subjected to the payment of
full assessment.
It appears clear from the scheme of s. 6 that
if the remuneration of the Watandar is merely cash allowance, or part or whole
of the land revenue of the land, compensation at the rate prescribed is payable
to the holder on abolition of the watan. If the remuneration consists not of
cash allowance or remission of land revenue, but of the land itself by the
combined operation of ss. 3(3) and 4 the holder of the watan land is entitled
to be regranted occupancy rights as in unalienated land. Section 9 deals with
the rights of persons to receive compensation for abolition, extinguishment or
modification of the right or interest in watan property by virtue of the
provisions of the Act, in cases where no other provision is made in that behalf
in the Act. There is 57 no serious dispute raised about this being the true
position in law.
But two questions remain in controversy
between the parties :
(1) Whether the right to or interest in
property of a watandar is abolished, extinguished or modified by the provisions
of the Bombay Paragana and Kulkarni Watans (Abolition) Act; and (2) Whether
provision for compensation for the abolition, extinguishment or modification or
the right or interest in the watan land of the holder is made by any provision
in the Act, so as to exclude the operation of s. 9(1) of the Act.
The first question presents little difficulty
in its solution. Section 3 in terms provides for abolition of the watan,
extinction of the ice and modification of the right in which the land is held.
The abolition, extinction and modification arise by the operation of s. 3 of
the Act,' and not from the exercise of the executive power of confiscation or
resumption, by the State. Undoubtedly the power of resumption of a watan may be
exercised under s. 22 of the watan Act and such a resumption may destroy the
right of the holder both to the ice and the watan land, and in the absence of
any provision in that behalf no right to compensation may arise. But where the
abolition of the watan is not by executive action, but by legislative decree,
its consequences must be sought in the statute which effectuates that
abolition.
On the second question the respondent affirms
the contention which appealed to the High Court that where the grant to a
watandar is of the soil and 58 not merely of cash allowance or of remission of
land revenue as remuneration for performance of the duties of his ice,
compensation has to be awarded under s. 9, for Act LX of 1950 makes no
provision for payment of compensation to the watandar for abolition of his ice
and rights in the land held by him. The correctness of this view is challenged
by the appellant. It must be remembered that the power which the State
Government always possessed by the clearest implication of s. 22 of the Bombay
Hereditary ices Act, 1874, of resumption is statutorily enforced by s. 3 in
respect of the Paragana and Kulkarni Watans. The State Government having the
power to abolish a watan ice, and to resume land granted as remuneration for
performance of the duties attached to the ice was not obliged to compensate the
wandar for extinction of his rights. But the Legislature has, as a matter of
grace, presumably because of settlements between the holders and the Government
under the Gordon Settlement, provided by s. 6 that cash compensation be awarded
for loss of the right to cash allowance or remission of land revenue and has by
s. 4 Conferred upon the holder of the watan land, for loss of his right, a
right to regrant of the land as occupant and free from the obligation imposed
by its original tenure as watan land. Provision is also made by s. 9 for
awarding compensation to persons whose right or interest in property is
abolished, extinguished or modified by virtue of the section, and no other
provision for compensation for such extinction, abolition or modification is
made by the Act. The right to cash compensation under s. 9 depends upon the
existence of two conditions : the abolition, extinction or modification of
rights in property by virtue of the provisions of the Act; and the absence of
any other provision in the Act for compensation in that behalf. If, therefore,
s. 4 which provides for conferment of occupancy rights in land, be regarded as
a provision for compensation for abolition, extinction or modification of the
59 right to hold it as watan land, the residuary enactment in s. 9 will not on
the plain terms be attracted. By the operation of s. 3 all Paraganas and
Kulkarni watans falling within the Act are abolished, the right to hold ice is
extinguished, and the land granted as remuneration for performance of service
is resumed. The holder of the land is thereafter liable to pay land revenue,
and is entitled, on payment of the occupancy price at the prescribed rate, to
be regranted occupancy rights as if it is unalienated land.
The right so conferred is, though not a right
to cash compensation, a valuable right of occupancy in the land. By the
resumption of watan land and regrant thereof in occupancy right, all the
restrictions placed upon the holder of watan land are by the provisions of the
Watan Act, and the terms of the grant, statutorily abolished. But the right of
occupancy granted by s. 4 adequately compensates the holder for loss of the
precarious interest of a watandar, because the land regranted after abolition
of the watan, is held subject only to the restrictions imposed by sub-s. (2) of
s. 4, and is freed from the incidents of watan tenure, such as restriction on
alienation beyond the life- time of the holder, devolution according to the
special rule of succession, and the liability to confiscation or resumption. In
our judgment, compensation contemplated to be awarded, not as a matter of right
but as of grace, is not merely money compensation; it includes grant of
occupancy rights which compensates for the loss of ice and the interest of a
watandar in the land. By s. 4 the Legislature has granted for the loss suffered
by the watandar on abolition of the watan and the rights in watan land, a right
of occupancy in the land which may properly be regarded as compensating him for
the abolition of his rights. Provision for levy of what is substantially a nominal
occupancy price will not detract from that character. After the commutation
settlement, the holder being relieved of the obligation to perform service, the
ice of wandar survives in name only, but the land 60 granted as walan remains
subject to the restrictions imposed by the Watan Act. by the regrant of the
land in occupancy right, on abolition or extinction of the watan, the holder is
not in truth prejudicially affected. Loss of watan rights in land, and the
watan ice is compensated by the regrant of occupancy rights in the land. It
would, therefore, be reasonable to infer that the Legislature contemplated the
grant of compensation under sub-s. (2) of s. 9 for abolition, extinction or
modification of rights other than the rights of the watandar to land or to cash
allowance or remission of land revenue.
The appeal is therefore allowed and the order
passed by the High Court set aside. We are informed at the Bar that the
respondent has not claimed right of occupancy in the land which was previously
held by him as watan land be granted to him. Whether he will be entitled
thereto in view of his failure to make a claim to a regrant is a matter on
which we express no opinion. Having regard to the circumstances, we direct that
there will be no order as to costs throughout.
Appeal allowed.
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