Shyamsunder Tikam Shet & ANR Vs.
State of Maharashtra & ANR [1969] INSC 285 (15 October 1969)
15/10/1969 RAMASWAMI, V.
RAMASWAMI, V.
DUA, I.D.
CITATION: 1970 AIR 381 1970 SCR (2) 801 1970
SCC (3) 217
ACT:
Bombay Khoti Abolition Act (6 of 1950), s.
12-Khoti-Rights in forest and waste lands.
HEADNOTE:
A Khoti in the district of Kolaba is only a
hereditary farmer of land 'revenue and is entitled to hold a village as Khoti
on his entering every year into the customary Kabulayat. The presumption is
that forest tracts and old waste belong to Government unless the presumption is
displaced by positive evidence that Government has granted rights in any
particular tract or piece of land or has consciously allowed adverse rights to
grow therein.
Therefore, in the absence of a sanad or a
deed or a grant granting proprietary rights over the soil a Khoti is not a
proprietor of the lands constituted as reserved 'forest in the Khoti village
and is not entitled to any proprietary rights in the uncultivated or forest land.
IN the present case the Special Deputy
Collector (Khoti) Kolaba, directed certain amounts to be paid to the appellants
for their share of compensation for Khoti rights in respect of reserved forest
and unassessed land in a village under s. 12 of the Bombay Khoti Abolition Act,
1949.
The Maharashtra Revenue Tribunal, in appeal,
set aside the order and remanded the case for retrial stating the various
points for decision, one of which was, 'whether the appellants prove that they
are the proprietors of the lands in the village or in the lands attached as a
reserved forest to the said village'.
In appeal to this Court,
HELD : The appellants should be given
sufficient opportunity by the Special Deputy Collector for proving by oral and
documentary evidence that they had proprietary rights in the status of Khoti
and then dispose of the matter according to the law relating to the rights of a
Khoti. [808 G-H] Tajubai v. Sub-Collector of Kulaba, 5 Bom. High Court Reports
132, Ganpati Gopal Risbud v. The Secretary of State for India, 26 Bom. L.R.
754, Kodoth Ambu Nair v. Secretary of State for India, 51 I.A. 257 and Sadashiv
Parshram Risbud v. Secretary of State for India,..20 Bom. L.R. 141, referred
to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 744 of 1966.
Appeal by special leave from the judgment and
order dated February 25, 1965 of the Maharashtra Revenue Tribunal, Bom- bay in
No. Rev. A. 40 of 1962.
S. T. Desai and Naunit Lal, for the
appellant.
G. L. Sanghi and S. P. Nayar, for the
respondents.
802 The Judgment of the Court was delivered
by Ramaswami, J. This appeal is brought by special leave from the judgment of
the Maharashtra Revenue Tribunal, Bombay in Revenue Appeal No. 40 of 1962
whereby the Tribunal set aside the award of the Special Deputy Collector,
(Khoti), Kolaba under s. 12 of the Bombay Khoti Abolition Act, 1949 directing
the amount of Rs. 837.94 to be paid to the appellants for their share of Rs.
0-12-1 1/3 share in village Kotheri, Taluka Mahal, District Kolaba and remanded
the case for retrial stating the points for decision 'by the Special Deputy
Collector.
On October 9, 1950 the appellants made an
application before the Collector of Kolaba for obtaining compensation for Khoti
rights in respect of reserved forest and unassessed lands in accordance with
the provisions of the Bombay Khoti Abolition Act, 1949 (Act No. VI of 1950)
(hereinafter referred to as the Act). In the application, the appellants stated
that the village Kotheri in Taluka Mahal was a Khoti village of Pat (leasehold)
and that the appellants had a Khoti share of Rs. 0- 12-1 1/2 in the village.
The appellants said that the total compensation which they claimed for the
entire village came to Rs. 17,615/- and that the share of Rs. 0-12-1 1/3 came
to Rs. 13,333-9-0. The appellants further claimed a sum of Rs. 7,480/- in
respect of 'loss under the reserved forest (74 acres 32 gunthas), and a sum of
Rs. 6,850/- being the one- third share of "the price at the present market
rate of the trees etc., that at present stand in the reserved forest".
On January 31, 1962 the appellants filed
before the Special Deputy Collector, Kolaba a preliminary statement. In that
statement the appellants contended that the Khots used to guard the forest in
their proprietary rights in about the year 1860 A.D. and that the said land had
been taken to the reserved forest. The appellants further contended that they
had a partnership with the State in respect of forest income, that is, in the
division of agricultural produce and that the "partnership in the forest
income has not been abo- lished under the Khoti Abolition Act and the
partnership is still subsisting." The appellants said that "the
question of determining compensation for the forest partnership cannot,
therefore, arise." On May 15, 1962 the Special Deputy Collector (Khoti)
Kolaba made his award granting a sum of Rs. 837-94 as compensation. Aggrieved
by the award the appellants preferred an appeal before the Maharashtra Revenue
Tribunal being Revenue Appeal No. REV. A. 40 of 1962. On September 16, 1963 the
appellants submitted before the Tribunal their written arguments. On September
18, 1964, November 21, 1964 and February 1, 1965 the appellants filed before
the Tribunal further supplementary arguments in writing. On February 21, 1965 the
Tribunal delivered its judgment holding that the Khoti in the Kolaba cannot 803
tary rights in the village or in the reserved forest unless he proves that he
has separate sanad or grant conveying to him these proprietary rights. The
Tribunal, however, took the view that the appellants were not bound by any
compromise decree and the Special Deputy Collector has dealt with the matter in
a perfunctory manner. The Tribunal therefore, set aside the award and remanded
the case for retrial setting out the points to be decided by the Special Deputy
Collector.
The Bombay Khoti Abolition Act, 1949 came
into force with effect from April 12, 1959. Section 2(1) (iv) of the Act
defines the word "Khot" as including a mortgagee lawfully in
possession of a Khotki. Section 2(1) (vii) of the Act defines the words
"Khoti Khasgi land" as follows "(a) in the Ratnagiri District
Khoti land held by and in possession of a Khot other than Khoti nisbat land and
land held by a privileged occupant as defined in the Khoti Act;
(b) in the Kolaba District- (i) land which is
entered in the Khot's own name as Khoti or in that of a co-sharer in a khotki
in the records of the original survey;
and (ii) land acquired since the original
survey by the Khot by purchase or other lawful transfer otherwise than in his
capacity as a Khot;" Section 2 (1) (viii) defines the words "Khoti
land" as follows 'Khoti land' means ',and in respect of which a Khot had,
as such, any right or interest in the district of Ratnagiri according to the provisions
of the Khoti Act and in the district of Kolaba according to the custom of the
tenure;" Section 3 of the Act provides for the abolition of the Khoti
tenure and states "3. With effect from and on the date on which this Act
comes into force,- (1) the Khoti tenure shall, wherever it prevails in the
districts of Ratnagiri and Kolaba, be deemed to have been abolished; and
5SupCiNP)/70--6 804 (2) save as expressly provided by this Act, all the
incidents of the said tenure shall be deemed to have been extinguished, notwithstanding
any law, custom, or usage or anything contained in any sanad, grant, kabulayat,
lease, decree or order of any court or any other instrument." Section 10
deals with the right to trees and states "The rights to trees specially
reserved under the Indian Forest-Act, 1927, or any other law for the time being
in force except those the ownership of which has been transferred by Government
under any contract, grant or law for the time being in force shall vest in Gov-
ernment." Section 12 of the Act before its amendment by the Maharashtra
Act 43 of 1963 stood as under :
"(1) If a khot or any other person is
aggrieved by any of the provisions of this Act as extinguishing or modifying
any of his rights in land and if such person proves that such extinguishment or
modification amounts to transference to public ownership of any land or any
right in or over such land, such person may apply to the Collector for
compensation.
(2) Such application shall be made in the
form prescribed by rules made under this Act on or before the 3 1 st day of
March, 1952.
(3) The Collector shall after holding a
formal inquiry in the manner provided by the Code award such compensation as he
deems reasonable and adequate;
Provided that- (a) the amount of compensation
for the- extinguishment of the right of reversion in lands in a Khoti village
in the district of Ratnagiri shall not exceed the amount calculated at the rate
of Rs. 2 per 100 acres of such land;
(b) the amount of compensation for the
extinguishment of any right to appropriate any uncultivated and waste lands not
appropriated by any khot and not entered in the revenue or survey records as
khoti khasgi immediately before the 1st day of August, 1949, shall not exceed
the amount calculated at the rate of Rs. 5 per 100 acres of such land Provided
further that in the case of the extinguishment or modification of any other
right of a khot or any 805 right of any other person the Collector shall be
guided by the provisions of sub-section (1) of section 23 and section 24 of the
Land Acquisition Act, 1894 :
Provided also that if any question arises
whether any land is dhara, khoti khasgi or khoti nisbat or is held by a
permanent tenant or other tenant, the Collector shall after holding a formal
inquiry in the manner provided by the Code decide the question.
(4) Subject to the provisions of sub-section
(5), the award or decision of the Collector shall be final.
(5) Any person aggrieved by the award or
decision of the Collector may appeal to the Bombay Revenue Tribunal constituted
under the Bombay Revenue Tribunal Act, 1939." The Act was amended by the
Maharashtra Act 43 of 1963 by which payment of compensation was provided to any
loss of share in the forest revenue and the Amending Act came into force on
October 6, 1963 and it was provided that the claim for compensation can be
entertained upto March 31, 1964.
On behalf of the appellants Mr. S. T. Desai
did not press the argument that the Act is ultra vires of the Constitution of
India or that the Act did not apply to the village of Kotheri or to the survey
plots in dispute. Learned counsel said that the appellant should be given
sufficient opportunity of proving by oral and documentary evidence that they
had proprietary rights in survey plots 130 and 132 of Mau a Kotheri in the status
of kothi.
The legal position is well-established that
khotis in the district of Kolaba are hereditary farmers of land revenue and are
entitled to hold villages as khoti on their entering every year into the
customary- kabulayat. According to Molesworth's Dictionary 'khot' means :
" a renter of a village, a farmer of
land or revenue, a farmer of the customs, a contractor or monopolist; an
hereditary officer whose duty it is to collect the revenue of the village for
Government, also an officer appointed for this office; a tribe of Brahmins in
the Southern Konkan." In Tajubai v. Sub-Collector of Kulaba(1) it was held
by the majority of the Full Bench that the khotis have no proprietary right in
the soil of their village but only hereditary right to farm the (1) 5 Bom. High
court Reports 132.
806 revenue and that if the "khot's
right is the hereditary farming of the revenue, the living principle of that
right would not be property inherent in the khot, but a perpetually running
contract with the State." At p. 149 Newton J., observed in the course of
his judgment :
"Do these facts e establish more than is
admitted, namely, that the plaintiff had an hereditary right of farming the
half of the village of Pegode, as long as, she continued annually to enter into
the customary ,agreement ? Do they prove that she as khot had any such
proprietary interest in the village, as would authorise her to claim
restitution of the half-share unconditionally, after failure during several
years to discharge the office of khot ? We think not.
We think, further, that some of the above
facts militate against the title alleged by the plaintiff." In Ganpati
Gopal Risbud v. The Secretary of State for India(1) the Bombay High Court
reiterated that khots in the district of Kolaba are hereditary farmers of the
revenue and are entitled to hold their villages as Khoti on their entering
every year into the customary Kabulayats. At p. 768 Macleod C.J.
stated "The relationship between the
Khot and the Government, to my mind, is perfectly clear.
As stated in Mr. Candy's report it is
indubitably established that a Khot's interest in his village is limited, not
absolute; he possesses in some measure a proprietary right;
in fact he is an occupant with all the rights
and liabilities affecting such a status. The Khot has to secure to Government
the payment of the village revenue, while the village lands which he has to
manage in accordance with the restrictions mentioned in the Kabulayat fall
under three distinct classes.
These are (1) Dharekari lands the tenants of
which have a transferable and heritable right paying Dhara alone to the Khot;
(2) Khotnisbat lands which are either in the hands of permanent occupancy
tenants or tenant,, with less permanent right payi Fayda to the Khot and the Government
assessment; and (3) Khoti Khasgi lands, private lands, in the possession of the
Khot of which he can make such use as he pleases." It was contended on
behalf of the 'appellants that the Sud of 1869 at p. 124-A of the paper book
was an important document id the Tribunal has not correctly appreciated the
meaning of the (1) 26 Bom. L.R. 754.
807 words Khalsa and Varkas. We do not wish
to express at this stage any concluded opinion on the construction of this
document. We wish to make it clear that it will be open to the appellants to
show before the Special Deputy Collector how far this document has a bearing on
their claim to proprietary right of survey plot nos, 130 and 132.
It is clear that in the absence of a sanad or
a deed or a grant granting proprietary rights over the soil a Khoti is not the
proprietor of the lands constituted as reserved forest in the khoti village and
is not entitled to any proprietary right in the uncultivated or forest land.
The legal position is correctly summarised in Dandekar's Law of Land Tenures,
Vol. 1, pp. 287-288 as under :
"Section 41 of the Land Revenue Code
declares that the right to all trees, bushwood, jungle or other natural
product, wherever growing, except in so far as the same may be the property of
individuals capable of holding property, vests in Government. Government
proprietorship of all trees is the rule and private rights or proprietorship,
if any, are merely exceptions to the rule. The question whether a Khot has got
the proprietary or any other limited right to the trees standing or growing on
lands in his khoti village depends (1) upon the khot's intereSt in the soil (2)
upon any express grant or concession, and (3) upon the customary user, if any.
If the first case, if the khot is the proprietor of the soil, which is very
hardly the case, lie is the proprietor of all the trees standing or growing on
the lands in his khoti village. The trees upon the land,and the right to cut
down and sell those trees is incident to proprietorship of the land. In such a
case the principle is quicquid plantatus solo solo cedit. Ordinary the khot
having no ownership over the soil, it has been held that he is not entitled to
cut timber either on uncultivated or on forest lands. Government has the right
to take such lands to make a forest reserve under the customary law as well as
under positive enactments." It is necessary in this context to refer to
the presumption that forest tracts and old waste belong to Government unless
the presumption is displaced by positive evidence that Government has granted
rights in any particular tract or piece of land or has consciously allowed
adverse rights to grow therein. (see Kodoth Ambu Nair v. Secretary of State for
India.(1) In Sadashiv Parshram Risbud v. The Secretary of State for India (2 )
the question arose whether the khots were entitled to (1) 51 I.A. 257. (2) 20
Bom. L.R. 141.
808 recover the sale proceeds of certain teak
trees sold by Government grown on Varkas lands. In the alternative the khots
claimed one-third share of the sale proceeds relying upon the clause in the
kabulayat. It was held by the Bombay High Court that as between the khots and
the Government the matter in dispute was concluded by the kabulayat and the
khot could not obtain more than one-third of the proceeds of the sale of the
trees. It was held by Shah, J., that the Dunlop's Proclamation could apply to
Varkas lands in a khoti village; but if any person claimed the benefit of the
Proclamation he should prove that the land, on which the trees stood, was his in
a popular sense, that is, it was sufficiently marked out as being in his
permanent occupation in his own right so as to make it properly describable as
his land. On the facts of that case it was held that the khots had no claim to
the teak trees under s. 40 of the Land Revenue Code and they had failed to
prove that they were entitled to the benefit of Dunlop's Proclamation in
respect of the Varkas lands in question.
In the present case the Maharashtra Revenue
Tribunal has remanded the case for retrial to the Special Deputy Collector,
Kolaba for decision on the following points :
(1) Whether the appellants prove that they
are the proprietors of the lands in the village of Kotheri or in the lands
attached as a reserved forest to the said village;
(2) Whether the appellants are entitled to
any compensation for the village gaothan lands or lands under the rivers and
nallas. This claim is based on the allegation of the appellants that they are
the proprietors of the village;
(3) Whether the 'appellants are entitled, as
a customary incident of the Khoti, to a share in the forest revenues of the
village;
(4) What is the market value of the loss of
such share or right, if any, in the gaothan and river and nalla lands.
We affirm the above order of remand and further
direct that an opportunity should be given by the Special Deputy Collector to
both sides to adduce such evidence as they choose on these points. After taking
such evidence the Special Deputy Collector will pronounce the award in the
light of the law laid down in this judgment. Subject to these observations we
affirm the order of the Maharashtra Revenue Tribunal dated February 25, 1965 and dismiss the appeal. There will be no order as to costs.
V.P.S. Appeal dismissed.
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