Full Judgment Text
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PETITIONER:
VITHAL YESHWANT JATHAR
Vs.
RESPONDENT:
SHIKANDARKHAN MAKHTUMKHANSARDESAI
DATE OF JUDGMENT:
19/04/1962
BENCH:
GUPTA, K.C. DAS
BENCH:
GUPTA, K.C. DAS
SARKAR, A.K.
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION:
1963 AIR 385 1963 SCR (2) 285
CITATOR INFO :
RF 1971 SC 442 (13)
R 1989 SC2240 (20)
ACT:
Watan Lands- Perpetual lease-Fixation of higher rent by
Government-Whether Watandar entitled to enhance rent-
Compulsory acquisition--Apportionment of compensation-If
Watandar entitled only to capitalised value of rent-Bombay
Hereditary Offices Act, 1874 (Bom. III of 1874), ss. 5 and
9.
HEADNOTE:
In 1863, the Watandar granted a permanent lease of watan
lands at a fixed rent of Rs. 727/- per year. In 1907 the
Watandar applied under s. 9 of the Watan Act for declaring
the lease null and void and for possession of the lands.
The Collector rejected the application but directed an
additional amount of rent to be paid. The Watandar moved
the Government and by an order dated May 23, 1911 ,the
Government fixed the rent at Rs. 1245/4/-. Some of the
lands were compulsorily aquired and the compensation was
apportioned between the Watandar and the tenant in the
proportion of 10 : 6. On appeal the High Court held that the
Watandar was entitled to claim that the tenant should pay
enhanced rent and on that basis apportioned the compensation
in the proportion of 55 : 45.
Held, that the Watandar was not entitled to enhance the rent
and that he was only entitled to the capitalised value of
the rent as his share of the compensation. In an
application under s. 9 of the Watan Act the Collector has
first to decide whether there are reasons for declaring the
alienation null,and void. If he decides that there are good
reasons he is to give the declaration and thereafter he may
either transfer the possession to the Watandar or take
action under s. 9(2), maintain the possession of the alience
and collect from him the proper amount as the profits from
the land for payment to the Watandar. In such a case, where
the alienation was a lease, the former lease ceased to be
effective and the lessee henceforth continued in possession
on the strength of the Collector’s permission. But if the
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Collector found no reasons to declare the lease null and
void he could take no action under s. 9(2). In the
proceeding of 1907 the Collector had refused the declaration
and consequently he had no jurisdiction to make any
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order under s. 9(2) and his order directing the tenant to
pay addition rent was without jurisdiction. From this order
it could not be inferred that he had declared the lease null
and void. Nor did the Government declare the lease of 1863
null and void; it merely ordered that the rent should be
revised and fixed at Rs. 1245/4/-. It proceeded on the
basis that the lease was subsisting the order of the
Government was one giving sanction to the lease of the Watan
lands to the person in possession at this revised rent
keeping the other terms regarding the lease being permanent
and the rent remaining fixed unaltered. The action of the
Government must therefore be held to be under s. 5, and not
under s. 9 of the Act.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 379 of 1957.
Appeal from the judgment and decree’ dated December 3, 1954,
of the Bombay High Court in F. A. No. 287 of 1953.
S.B. Jather, E. Udayarathnam and B. P. Maheshwari, for
the appellant.
S.G. Patwardhan, J.B. Dadachanji, S. ,’V. Andley,
Rameshwar Nath and P. L. Vohra, for the respondent.
1962. April 19. The Judgment of the Court was delivered by
DAS GUPTA, J.-This appeal arises out of a reference under s.
30 of the Land Acquisition Act as regards the apportionment
of Rs. 35,102-10-0, the compensation awarded for two plots
of land numbered, Survey No. 37 Kambhapur and Survey No. 137
Narendra. It is no longer disputed that these form part of
a Watan. The dispute as regards the apportionment has
arisen between the Watandar and the person in actual
possession of the land, the appellant before us.
The Land Acquisition Judge made an order that the
compensation be apportioned in the ratio of 10, 6, the
10/15th to be given to the landlord and the remainder to the
tenant. The correctness of
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this was challenged in appeal. It was urged that the rent
was fixed in perpetuity and the landlord had no right to
increase the rent, and so, the landlord should get only the
capitalised value of the rent payable for the acquired lands
and the remainder should go to the tenant. The High Court
held that the landlord had the right to claim that the
tenant should pay enhanced rent and directed the
compensation to be apportioned in the proportion of 55 to 45
between the landlord and the tenant.
Against this decision this appeal has been preferred on
certificate granted by the High Court.
The real question in controversy is whether at the date of
the acquisition, the landlord (the Watandar) had any right
to enhance the rent in respect of these lands. It appears
that in 1963 a permanent lease was executed by the then
Watandar in favour of the appellant’s predecessors. The
rent also was permanently fixed by the lease at Es. 727/-
per year. In 1907 the Watandar made an application under s.
9 of the Bombay Hereditary Offices Act, 1874-which is
described in short as the "Watan Act". In this application
he asked for a declaration that the alienation by the lease
of 1863 be declared null and void and the Watandar be put in
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possession of the land leased.
The Assistant Collector, before whom the application come up
for hearing rejected the application and refused to put the
Watandar in possession or to cancel the lease of 1863. On
appeal the Collector by his order dated March 16, 1908
maintained the Assistant collector’s order with the
modification that he directed an additional amount of rent
equal to the case paid on the land to be paid by the
lessees. An appeal to the Commissioner was unsuccessful.
Then the Watandar moved the Government of Bombay. The
Government, made an order on May 23, 1911, fixing the rent
payable
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for the lands covered by the lease at Rs. 1245/4/-. The
effect of this order by the Government requires careful
consideration.
It is to be mentioned, however, that in the year 1926 the
Watandar again moved the Government for a further increase
of the rent, or for the restoration of the lands; and
thereupon the Government made an order in 1927 fixing the
rent at Rs. 4300/- and also directing that the rent leviable
should be revised periodically at intervals of 10 years.
In 1928 the tenant brought a suit against the Secretary of
State for India and the Watandar in the Court of the First
Class Subordinate Judge, Dharwar, praying for a declaration
that the lands mentioned in the Schedule to the plaint-which
are the lands in respect of which the orders mentioned above
were made by the government-did not form part of the
Watan lands, that in any case the plaintiffs bad acquired
the statue of Watandars and further that the government
resolutions of 1911 and of 1927 were ultra vires. The
learned SubordiNate Judge held that the lands did form part
of the Watan and that the Watan Act was applicable to these
lands. He also hold that the order of the Collector in
1908, though defective in form was in substance one under s.
9, sub-s. 2 of the Watan Act and therefore it could not be
said to be ultra vires. He also held however that the order
of Government in fixing rent at RS. 1245/4/which was well
above that the Collector had fixed was ultra vires; but that
the plaintiff was not entitled to any declaration that the
Government resolution of 1911 was ultra wires because of the
law of limitation. The learned Judge further held that the
government resolution of 1927 was ultra vires. Accordingly
he made an order directing the first defendant, the
Secretary of State for India in
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Council, not to levy a rent higher than Re. 1245/4/in
enforcement of the resolution of 1911 and declaring that the
higher rent levied by the Collector purporting tobe under
the 1927 resolution was unauthorised. He also made an
order directing the realisation of the excess amount of Rs.
4582.2-0 from defendants Nos. 1 and 2.
Against this decision, the Secretary of’, State for India,
the defendant No. 1 as also the Watandar, the defendant No.
2 appealed to the High Court. No appeal was however
preferred by the plaintiff. The High Court (Beaumont C. J.
and Wassoodew J.) dismissed the appeal, except as regards
the order directing both the defendants Nos. 1 and 2 to pay
the excess amount. The learned Judges altered this to a
direction that the amount should be recovered from the
defendant No. 2, the Watandar, only. Except for this they
dismissed the appeal. They held in agreement with the
learned Subordinate Judge that the government’s order of
1927 was ultra vires. The learned Judges were of opinion :
(1) that the order by government in 1911 was not an order
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under s. 9 and could only be considered to be legal on the
basis that it was a grant of a fresh lease by the Watandar
at the rent of Rs. 1245/4/- with the sanction of government
under s. 5 of the Watan Act; and (2) that in any case in
making the order in 1927 the government was acting beyond
their powers as any action under s. 9 of the Watan Act must
in the first instance be taken by the Collector and could
not be taken initially by the Government.
The result is that as between the parties, viz., the
Watandar and the tenant it can no longer be disputed that
the government resolution fixing the rent of the Watan lands
at Rs. 1245/4/- is legally binding. In deciding the
question whether it is open to the Watandar to increase the
rent it is necessary to decide whether the government’s
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action can be properly held to be one under s. 9 or
sanctioning a fresh lease at Rs. 1245/4/-.
Before the High Court it was urged on behalf of the tenant-
appellant that the earlier decision of that Court, which has
been mentioned above, that the order of the government
fixing the rent at Rs. 1245/4/- was not an order under s. 9
and amounted in law to the sanction of the government to the
grant of a fresh lease at Rs. 1245/4/- to the former tenant
operated as res judicata between the parties. The learned
Judges of the High Court have rejected this contention in
the view that what the Court said on the earlier occasion
was obitor. The correctness of this view is challenged
before us by the appellant. It is urged that the fact that
another ground was given by the High Court (on the earlier
occasion) for its conclusion that the government order of
1927 could not stand does not alter the position that this
ground that the government order of 1911 was not one under
s. 9, sub-s. 2 but amounted to a sanctioning of a fresh
lease was also decided as a basis for the ultimate
conclusion. It is well settled that if the final decision
in any matter at issue between the parties is based by a
Court on its decisions on more than one point-each of which
by itself would be sufficient’ for the ultimate decision-the
decision on each of these points operates as res judicate
between the parties. (Vide Kishori Lal v. Devi Prasad
Annammalai v.Lakshmanan; (2)
It was pointed out, however, on behalf of the respondent
that the tenant did not file any appeal at all against the
Subordinate Judge’s decision refusing to interfere with the
government’s order and so before the High Court no question
as regards the government’s order of 1911 was at issue. For
that reason, it is argued the High Court’s decision on the
earlier occasion as regards the nature of the order of 1911
cannot operate as res judicata.
(1) A. I. R. (1950) Pat. 50. (2) A.I.R. (1939) Mad. 433.
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We do not propose to investigate the question whether the
High Court’s earlier decision that the government’s order of
1911 amounted in law to sanctioning a fresh lease operate;
as res judicata or not,, as, quite independently of that
decision, we think it proper to hold that the government’s
order of 1911 is not an order under s. 9 (2) of the Watan
Act but amounted only to a sanction of a fresh lease.
Section 9 of the Watan Act is in these words
"(1) Whenever any watan or, any part thereof,
or any of the profits thereof, whether
assigned as remuneration of an official or
not, has or have, before the date of this Act
coming into force, passed otherwise than by
virtue of, or in execution of, a decree or
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order of any British Court and without the
consent of the Collector and transfer of
ownership in the Revenue records, into the
ownership or beneficial possession of
’any person not a watandar of the same watan,
the Collector may, after recording his reasons
in writing declare such alienation to be null
and void, and order that such watan, or any
part thereof, or any of the profits thereof,
shall from the date of such order belong to
the watandar previously entitled thereto, and
may recover and pay to such watandar any
profits thereof accordingly.
(2)If such part of a watan be land, it shall
be lawful for the Collector, instead of
transferring the possession of the land, to
demand and recover the full rent ordinarily
paid by tenants of land of similar description
in the same locality, and the amount so
recovered shall be considered as the profits.
The decision of the Collector as to what is
the full rent shall be final"
202
The relief which a Watandar can obtain under this section is
in the first place a declaration that the alienation by
which a transfer of ownership or possession was effected was
null and void. When such declaration is given the Collector
may do one of two things. He may either transfer the
possession of the land of the Watan to the Watandar as a
consequential relief of the declaration; or instead of
transferring such possession he may recover for the Watandar
the profits of the land. The measure of such profits would
be the full rent ordinarily paid by tenants of land of
similar description in the same locality.
The first thing which the Collector has therefore to decide
when an application is made by a Watandar for relief under
s. 9 is : whether there are reasons for declaring the
alienation null and void. If he decides that there are no
such reasons the application must be rejected. If, on the
contrary, the Collector is satisfied that there are good
reasons for declaring the alienation null and void he is to
record his reasons and give a declaration as prayed for that
the alienation was null and void. Having made such
declaration he is then to decide whether the possession
should transferred to the Watandar or action should be taken
under s. 9(2) that is, instead of transferring the
possession of the land, be should collect from the person in
possession the proper amount as the profits from the land,
for payment to the Watandar. It is important to notice that
action under sub-section 2 can be taken only on the basis
that the alienation has ceased to have any legal force.
Thus where the alienation was by way of lease, action under
s.9(2) can be taken only on the basis that the lease is no
longer effective in law and the relationship of landlord and
tenant has ceased between the Watandar and the person in
possession. Where the Collector takes action under s. 9(2),
the person
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formerly in possession as a lessee, continues in possession
henceforth not as ’a lessee but on the strength of the
Collectors’s permission only. In other words, in taking
action under s.9(2) the Collector is not creating a fresh
lease in place of the lease that has been declared null and
void but only directs that the person in possession is to
continue in possession subject to the payment of such amount
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as he decides to be the full rent ordinarily paid by tenants
of land of. similar description in the same locality.
The Assistant Collector, before whom the application of the
Watandars, predecessors of the present respondent under s.9
of the Watan Act came up for consideration rejected the
application of Matunkhan asking that the lands enjoyed by
Bhaskarrao Jather on a perpetual lease should be’ fully
restored to his possession cancelling the lease passed in
1863." That is, he refused the prayer for a declaration that
the alienation was null and void necessarily refused the
prayer for consequential relief As has been already
indicated, the Collector who heard the appeal was of opinion
that the order appealed against "was undoubtedly correct in
the main" but still he ordered ’-an additional amount of
rent equal to the cess to be paid," There is no suggestion
in the Collector’s order that in his view the Assistant
Collector had been wrong in thinking that there are no
reasons for declaring the alienation to be null and void.
On the contrary, the Collector’s order indicates that he
agreed with the Assistant Collector in the view that the
alienation could not be declared null and void. To read
this appellate order as making by implication a declaration
that the lease of 1863 was null and void is not only to read
into it words which are not there but indeed to go against
the clear tenor of the words which have been actually used.
There is no justification in our opinion, to hold that when
the
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Collector made the order that an additional amount of rent
equal to the cess be paid he must have had in mind the
provisions of’ s.9(2) of the Watan Act and so the entire
order should be read as giving first, by implication a
declaration that the lease was null and void and, secondly,
making an order for collection of profits on behalf of the
Watandar from the person in possession. It is true that
under the law the Collector was not entitled to make this
order for payment of additional rent unless he first
declared the previous lease to be null and void and then
found that the previous rent together with the additional
amount of rent represented the full rent ordinarily paid by
tenants of land of similar description in the same locality.
From the mere fact that this order was made by him for
payment of additional amount of rent equal to cess, it is
not however permissible to work back and imagine something
which was not said ’by him. When the matter came up to the
government after the Commissioner had dismissed the’ appeal
from the Collector’s decision the government also made no
declaration that the lease of 1863 was null and void. But,
after setting out certain circumstances which seemed to show
that at the time when the lease was granted the interests of
the Watandar were not properly considered by the lessee who
held a quasi fiduciary relation towards the Watandar, the
government ordered :-"The rent should therefore now be
revised and fixed at Rs. 1245/4/- being a sum equal to the
present a rental plus the judi plus the local fund cess.
The government was thus clearly acting on the basis that the
person in possession was a tenant of the Watandar but rent
for the tenancy should be fixed at Rs.1245/4/-. Such action
can not by any stretch of imagination be considered to be an
action under s.9 of the Watan Act. The only legal basis
that can be found for the government’s action is in s.5 of
the Watan Act.
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That section provides that without the sanction of the State
Government....................................... it shall
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not be competent to a Watandar to mortgage, charge, lease or
alienate, for a period beyond the terms of his natural life,
any watan or any part thereof, or any interest therein, to
or for the benefit of any person who is not a watandar of
the same watan. By necessary implication this section
authorises the State Government to sanction the mortgage,
charge, alienation or lease, by a Watandar, for a period
beyond the term of his natural life of any watan, or any
part thereof, or any interest therein. to or for the benefit
of any person who is not a watandar of the same watan, and
on such sanction being given the Watandar has power to act
accordingly. It is known that after the order of the
government made in 1911., the former tenant continued in
possession and the Watandar received from him the rent fixed
by the government, that is Rs.1245/4/- for the Watan. In
all these circumstances, it is reasonable to hold that by
the order of 1911 the government was giving its sanction to
the lease of the watan lands to the person in possession at
this revised rent. In consequence of the government’s order
therefore a lease came into existence at the rate of Rs.
1245/4/- in place of the old lease of 1863.
If that be the position is the Watandar entitled to increase
his rent? There was no document in writing for the lease
which came into existence after the government’s order of
191 1. It is quite clear, however, from the order of the
government that the only change it sanctioned in the terms
of the former lease was as regards rent. That was changed
from Rs.727/- to Rs.1245/4/-; but the other terms, namely ,
that the lease was permanent and the rate of rent would
remain fixed from the date of creation of the lease remained
unaltered. To use the words of Chief Justice
296
Beaumont in the earlier litigation between the parties: "the
Government resolution dated the 23rd May, 1911 amounts to an
opinion to a confirmation of the 1863 lease with a
modification as to the rent." The Watandar had therefore no
right to increase the rent.
The result is that out of the amount of compensation awarded
for these lands, the respondent being the landlord, is
entitled to only the capitalised value of the rent. The
rent for the entire Watan, which is stated to be 400 acres
of land, being Rs. 1245/4/- the proportionate rent for the
lands acquired, that is, 30 acres and 32 gunthas works out
at about Rs.95/9/-. The capitalised value of this at twenty-
five times, amounts to Rs-2389/1/-. The apportionment
should therefore be that Rs.2389/1/of the amount of
compensensation be awarded to the respondent and the
remainder to the appellant.
For the reasons mentioned above, we allow the appeal and
direct the compensation to be apportioned in the manner
mentioned above. The .appellant will get his costs here and
below.
Appeal allowed.
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