Full Judgment Text
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PETITIONER:
SHRIMANT SARDAR BHUJANGARAODAULATRAO GHORPADE
Vs.
RESPONDENT:
SHRIMANT MALOJIRAO DAULATRAOGHORPADE AND OTHERS.
DATE OF JUDGMENT:
30/01/1952
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
SASTRI, M. PATANJALI (CJ)
DAS, SUDHI RANJAN
CITATION:
1952 AIR 138 1952 SCR 402
CITATOR INFO :
E&D 1964 SC 436 (13)
ACT:
Bombay Revenue Jurisdiction Act (X of 1876), s. 4
(a)--Saranjam--Dispute between branches of grantee’s
family--Government Resolution regulating succession--Suit to
declare Resolution ultra vires, for declaration of sole
right as saranjamdar, and for injunction against other
branches--Government impleaded as party--Maintainability of
suit.
HEADNOTE:
The position of the Gajendragad estate which had been
recognised by the British Government as a saranjam and which
had been declared by the Bombay High Court in 1868 to be
partible, was re-examined in 1891 and Government passed a
Resolution in 1891 that "the whole of the Gajendragad estate
was a saranjam continuable as hereditary in the fullest
sense of the word. It is continuable to all male legitimate
descendants of the holder at the time of the British con-
quest." In 1932 by another Resolution Government formally
resumed the grant and re-granted it to the plaintiff who
belonged to the first branch of the family of the original
grantee with a direction that it should be entered in his
sole name in the accounts of the Collector. The other two
branches felt aggrieved and in 1936 Government passed anoth-
er Resolution which confirmed the Resolution of 1891 and
modified the Resolution of 1932, by declaring that the
portions of the
403
estate held by the branches shall be entered as de facto
shares and that each share shall be continuable hereditarily
as if it were a separate saranjam estate. The plaintiff
instituted a suit impleading the representatives of the
other two branches as defendants 1 and 2, and the Province
of Bombay as the 3rd defendant, alleging that the Resolution
of 1936 was ultra vires and praying (A) for a declaration
(i) that the defendants 1 and 2 had no right to go behind
the Resolution of 1932 under which the plaintiff was recog-
nised as the sole saranjamdar and that the assignments held
by defendants were held by them as mere potgi holders, (ii)
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that the plaintiff had the sole right to all privileges
appertaining to the post of saranjamdar, and (iii) that the
Government had no right to change the Resolution of 1932,
and (B) for restraining the defendants 1 and 2 from doing
any acts in contravention of the aforesaid right of the
plaintiff.
Held, (i) that the suit was a suit "against the Crown"
and also a suit "relating to lands held as saranjam" within
the meaning of sec. 4 of the Bombay Revenue Jurisdiction
Act, 1876, and the Civil Courts had no jurisdiction to
entertain the suit;
(ii) that the plaintiff could not be given even the
reliefs claimed against defendants 1 and 2 alone, as the
rights claimed against these defendants could not be di-
vorced from the claim against the Government and considered
separately;
(iii) in any event if the claim against the Government
was to be ignored it can only be on the basis that its
orders could not be challenged and if the orders stood, the
plaintiff could not succeed because both sides held their
respective properties on the basis of those orders.
Basalingappagowda v. Secretary of State (28 Born. L.R.
651) and Basangauda v. Secretary of State (32 Bom. L.R.
1370) approved. Province of Bombay v. Hormusji Maneklal
(74 I.A. 03) distinguished.
Held also, that see. 4 of the said Act would apply even
if the only relief claimed in the suit against the Govern-
ment was a declaration.
Dattatreya Viswanath v. Secretary of State for India
(I.L.R. 1948 Bom. 809) disapproved. Daulatrao v. Government
of Bombay (47 Bom. L.R. 214) approved.
JUDGMENT:
CIVIL APPPELLATE JURISDICTION: Civil Appeal No. 11 of
1950.
Appeal from the judgment and decree of the High Court
of Bombay (Bhagwati and Dixit JJ.) dated 16th December,
1948, in Second Appeal No. 1226 of 1945 confirming a judg-
ment and decree of the District Judge of Dharwar in Appeal
No. 123 of 1943. The facts of
404
the case and the arguments of the counsel appear in the
judgment.
B. Somayya and Sanjiva Rao Naidu (N. C. Shaw, with them)
for the appellant.
M.C. Setalvad, Attorney-General for India, (V. N.
Lokur, with him) for the respondents Nos. 1 and 2.
M.C. Setalvad, Attorney-General for India, (G. N. Joshi,
with him) for respondent No. 3 (the State of Bombay.)
1952. January 30. Judgment was delivered by BOSE J.
PATANJALI SASTRI C.J. and DAS J. agreed with Bose J.
Bose J.--The plaintiff appeals.
The suit relates to a Saranjam estate in the State of
Bombay. The plaintiff claims to be the sole Saranjamdar and
seeks certain declarations and other reliefs appropriate to
such a claim.
The first and second defendants are members of the
plaintiff’s family while the third defendant is the State of
Bombay (Province of Bombay at the date of the suit).
The only question is whether the suit is barred by
section 4 (a) of Bombay Act X of 1876 (Bombay Revenue Juris-
diction Act).
The following genealogical tree will show the relation-
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ship between the parties:
Bhujangrao Appasaheb
(British grantee)
Daulatrao I
(died 24--7--1864)
Bhujangrao I Malojirao Yeshwantrao alias
(died 1881 ) : Annasaheb
: : :
(widow) Krishnabai Daulatrao III Bhujangrao II
Daulatrao II (Del. 1) (Def. 2)
(died 8--5--1931)
:
Bhujangrao III
(Plaintiff)
405
The facts are as follows. A common ancestor of the
present parties was given the Gajendragad estate as a Saran-
jam some time before the advent of the British. When they
arrived on the scene they decided, as far as possible, to
continue such Saranjams, jagirs and inams as had been grant-
ed by the earlier rulers, and accordingly they framed rules
under Schedule B, Rule 10 of Bombay Act XI of 1852 (The
Bombay Rent Free Estates Act of 1852) to regulate the mode
of recognition and the succession and conditions of tenure
to Saranjams, which are analogous to jagirs. In compliance
with this, the common ancestor shown at the head of the
genealogical tree set out above was recognised by the Brit-
ish Government as the Saranjamdar of the Gajendragad estate.
He may for convenience be termed the British Grantee. The
Register Ex. P-53 shows that the estate consisted of 26
villages. We do not know the date of the British recognition
but the nature of the tenure is described as follows :--
"Continuable to all male legitimate descendants of the
holder at the time of British conquest, viz., Bhujangrao
Appasaheb, the first British Grantee, son of Bahirojirao
Ghorpade."
On the death of the British Grantee (Bhujangrao Appa-
saheb) he was succeeded by his son Daulatrao I who died on
the 24th of July, 1864. This Daulatrao I left three sons,
Bhujangrao I, Yeshwantrao and Malojirao.
In the year 1866 Bhujangrao I and his brother Yesh-
wantrao alias Annasaheb sued Malojirao for possession of
this Saranjam. A question of impartibility was raised but
the Bombay High Court declared that the property in British
India was partible. They further declared that Bhujangrao I
was the head of the family and as such was entitled to a
special assignment which was not to exceed a quarter share,
for the expenses and duties which might devolve on him by
virtue of his position, and that after this had been set
aside each of the three brothers was entitled to an equal
one-third Share in the landed property in India. This
judgment
406
is reported in 5 Bom. H.C.R. 161. The duties enumerated at
page 170 included the "keeping up of armed retainers for the
fort of Gajendragad, and for the improvement of that vil-
lage, which was the chief seat of this branch of the Ghor-
pade family, and also to enable him to distribute on ceremo-
nial occasions the customary presents to the junior members
of the family." The judgment is dated the 12th of October,
1868.
As a consequence a division of the property was ef-
fected. Malojirao separated himself from his brothers and
was allotted seven villages. The other two brothers
continued joint and took the remainder. But this was only
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with respect to property situate in British India. The
parties also had property in the State of Kolhapur. That
was left undivided.
Bhujangrao I died in 1881 and his younger brother Yesh-
wantrao (alias Annasaheb) claimed to succeed as the sole
heir. The Political Department of the Government of India
refused to recognise this claim and permitted Bhujangrao I’s
widow Krishnabai to adopt a a boy from the family and recog-
nised him as the heir in respect of that portion of the
estate which lay within the Principality of Kolhapur. This
was on the 3rd of February, 1882.
The Bombay Government followed a similar course
regarding the property in British India. On the 26th of
April, 1882, they passed a Resolution embodying the follow-
ing decision:
(1) The adoption was to be recognised and the adopted
son was to occupy the same position as his adoptive father,
that is to say, he was to get one-third of the property plus
the assignment given to him as head of the family.
(2) Malojirao who had already taken his share of the
estate was to continue in possession.
(3) Yeshwantrao (alias Annasaheb) was given the option of
remaining joint with the adopted boy or separating.
Finally, the Resolution Concluded--
407
‘‘The two brothers will hold their respective shares as
their private property in virtue of the decree of the High
Court and the Jahagir will henceforth be restricted to the
portion awarded by the High Court to Bhujangrao which the
adopted son will now inherit. It should however be clearly
understood that the decision of the High Court is not to be
held as a precedent and that no partition of the Jahagir
Estate to be continued to the adopted son will ever be
allowed."
This position was emphasised by Government in the same
year on the 22nd August, 1882. Krishnabai, who had been
allowed by Government to adopt Daulatrao II, asked that her
husband’s one-third share in the estate be also treated as
private property in the same way as the shares of the other
two brothers. This prayer was refused and Government stat-
ed:
"It should be plainly understood that Government allow
the adoption to be made by her only in consideration of
Bhujangrao’s one-third share as well as the portion assigned
to him as head of the family being continued to the adopted
son as indivisible Jahagir Estate descending in the line of
male heirs in the order of primogeniture and subject to no
terms whatsoever as to the enjoyment of the same by Krishna-
bai during her lifetime."
The position was re-examined by Government in 1891 and
its decision was embodied in the following resolution dated
the 17th of March, 1891:
"It appears to Government that the whole Gajendragad
Estate is a Saranjam continuable as hereditary in the full-
est sense of the word as interpreted by the Court of Direc-
tors in paragraph 9 of their Despatch No. 27 dated 12th
December, 1855. It is continuable to all male legitimate
descendants of the holder at the time of the British con-
quest; and should Government ever sanction an adoption the
terms of sanction would be those applicable to Saranjamdars.
The property should be dealt with like Other Saranjams in
the Political Department."
53
408
In the year 1901 the adopted son Daulatrao II sued
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Yeshwantrao’s son Bhujangrao II for partition. It will be
remembered that in the litigation of 1866, which ended in
the Bombay High Court’s judgment reported in 5 Bom. H.C.R.
161, Malojirao alone separated and the other two brothers
continued joint. The litigation of 1901 put an end to that
position. High Court’s judgment dated the 12th of March,
1908, makes it clear that as Government was not a party to
that litigation its rights against either or both of the
parties were not affected. But as between the parties inter
se they were bound by the previous decision and so the
adopted son was entitled to partition and separate posses-
sion of such properties as might fall to his share. After
this decision was given the two partitioned the property
between themselves amicably.
In or about the year 1930 a Record of Rights was intro-
duced in fourteen of the villages in the Gajendragad Jaha-
gir and a dispute arose again between the three branches of
the family. The District Deputy Collector, after inspecting
the records, found that "the name of the Khatedar Saran-
jamdar alone has found place in the village Inam register,
in the Saranjam list and the land alienation register,"
while in the other village records the various members of
the family were entered according to the "actual wahivat or
enjoyment."
After due consideration he thought that the interest of
Government and the Saranjamdar would be sufficiently
safeguarded by allowing the same position to continue. He
ordered the entries to be made accordingly. The order also
discloses that the matter had been referred to the Legal
Remembrancer to the Bombay Government.
In the meanwhile, on the 5th of May, 1898, a set of
Rules framed under Schedule B, Rule 10, of the Bombay Rent
Free Estates Act of 1852 were drawn up and published in the
Bombay Gazette. These Rules were republished, probably with
some modification, in the Gazette of 8th July, 1901. The
portions applicable here were as follows:-
409
"I. Saranjams shall ordinarily be continued in accordance
with the decision already passed by Government in each
case.
II. A Saranjam which has been decided to be hereditarily
continuable shall ordinarily descend to the eldest male
representative, in the order of primogeniture, of the senior
branch of the family descended from the first British Gran-
tee or any of his brothers who were undivided in interest.
But Government reserve to themselves their rights for suffi-
cient reason to direct the continuance of the Saranjam to
any other member of the said family, or as an act of grace,
to a person adopted into the same family with the sanction
of Government.
V. Every Saranjam shall be held as a life estate. It
shall be formally resumed on the death of the holder and in
cases in which it is capable of further continuance it shall
be made over to the next holder as a fresh grant from Gov-
ernment, unencumbered by any debts, or charges, save such as
may be specially imposed by Government itself.
VI. No Saranjam shall be capable of sub-division.
VII. Every Saranjamdar shall be responsible for making a
suitable provision for the maintenance of...... "(certain
members of the family enumerated in the Rule).
IX. If an order passed by Government under Rule VII is not
carried out, Government may, whatever the reason may be,
direct the Saranjam, or a portion of it, to be
resumed....... Provision for the members of the Saranjam-
dar’s family entitled to maintenance shall then be made by
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Government out of the revenues of the Saranjam so resumed."
After the District Deputy Collector’s orders were
passed on the 20th of May, 1930, Daulatrao II died on the
8th of May, 1931, and the matter was again taken up by
Government. This time it passed the following
410
Resolution on the 7th of June, 1932. The Resolution was
headed, "Resumption and regrant of the Gajendragad Saranjam
standing at No. 91 of the Saranjam List." It reads--
"Resolution :--The Governor-in-Council is pleased to
direct that the Gajendragad Saranjam should be formally
resumed and regranted to Bhujangrao Daulatrao Ghorpade
eldest son of the deceased Saranjamdar Sardar Daulatrao
Bhujangrao Ghorpade and that it should be entered in his
sole name in the accounts of the Collector of Dharwar with
effect from the date of the death of the last holder. The
Collector should take steps to place the Saranjamdar in
possession of the villages of the Saranjam estate which were
in possession of the deceased Saranjamdar.
2. The Governor-in-Council agrees with the Commis-
sioner, Southern Division, that the assignments held by the
Bhaubands as potgi holders should be continued to them as at
present."
The Bhujangrao mentioned in the Resolution is the plain-
tiff who is shown as Bhujangrao III in the genealogical
tree.
The defendants were evidently aggrieved by this, for
they filed Suit No. 23 of 1934 against the present plaintiff
and the Secretary of State/or India in Council praying inter
alia "that the properties in that suit, viz., the villages
allotted to their shares, were their independent and private
properties and in case they were held to be Saranjam proper-
ties, they be declared as independent Saranjams, separate
and distinct from the one held by the present plaintiff."
This suit was withdrawn with liberty to bring a fresh
suit on the same cause of action against the present plain-
tiff but not against the Secretary of State for India in
Council. According to defendants 1 and 2, this was pursuant
to an arrangement between the Government and themselves that
Government would issue a fresh Resolution in terms of the
earlier Resolution dated the 17th of March, 1891.
411
This was done. On the 25th of February, 1936, Government
passed the following Resolution :--
"Resolution :--After careful consideration the
Governor-in-Council is pleased to confirm the decision in
Government Resolution (Political Department) No. 1769
dated the 17th of March, 1891,and to declare that the whole
of the Gajendragad Estate shall be continuable as an
inalienable and impartible Saranjam on the conditions
stated in the said Resolution. Having regard, however, to
the manner in which different portions of the estate have
been held by different branches of the family, the
Governor-in-Council, in modification of the orders contained
in Government Resolution No. 8969 dated the 7th June, 1932,
is pleased to direct that the portions of the said estate
held by Sardar Bhujangrao Daulatrao Ghorpade, Daulatrao
Malojirao Ghorpade and Bhujangrao Yeshwantrao Ghorpade,
respectively, shall henceforth be entered in the Revenue
Records as de facto shares in the said estate held by the
said persons as representatives, respectively, of three
branches of the Ghorpade family. Each of the said de facto
shares shall be continuable hereditarily as such as ii it
were a separate Saranjam estate in accordance with the rules
made for the continuance of Saranjams by the Governor-in-
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Council in exercise of the powers referred to in the rules
framed under the Bombay Rent Free Estates Act, 1852, and
section 2 (3) of the Bombay Summary Settlement Act (VII of
1863) and such special orders as the Governor-in-Council may
make in regard to the Gajendragad Estate as a whole or in
regard to the said share. The recognition of the aforesaid
shares and their entry in the Revenue Records as separate
shares shall not be deemed to amount to a recognition of the
estate of Gajendragad as in any manner partible or alienable
and shall not in any way affect the right of Government to
treat the said estate as an entire impartible and inalien-
able Saranjam estate.
2. The Governor-in-Council further directs that the
aforesaid shares shall in no case be capable of
412
sub-division and shall not in any way be alienated or encum-
bered except in accordance with the rules and orders re-
ferred to above..."
The present suit is an attack on the action of Govern-
ment in passing this Resolution. The first and second
defendants are the present representatives of the other
branches of the family and the third defendant is the Prov-
ince of Bombay (now the State of Bombay). The plaint
states-
"9. Government can have no jurisdiction to deprive the
plaintiff at any rate during his lifetime of the full bene-
fit of all the rights and privileges appertaining to the
holder of a Saranjam. The Order of Government of the 8th
February, 1936 is, therefore, ultra vires and in no way
binding on the present plaintiff......
10. Defendants 1 and 2, therefore, are not entitled to
any rights or privileges claimable by the holder of a Saran-
jam which according to the G.R. is continuable ’as an inali-
enable and impartible Saranjam’, such as for example in the
matter of appointment of the village officers in any of the
27 villages appertaining to the Gajendragad Saranjam.
11. The cause of action arose in April 1938 and the
resolution and the entry being ultra vires is not binding...
12. As this is a suit claiming for relief primarily
against defendants 1 and 2, defendant 3 is made a party to
the suit in order to enable Government (defendant 3) to give
proper effect to the decision of Government of the 17th
March, 1891, and of 7th June, 1932, as against defendants 1
and 2 who have no right to the position which they claim..."
The reliefs prayed for are--
"(a) That it be declared that defendants 1 and 2 have no
right to go behind the order of the Government as per Reso-
lution No. 8969 of 7th June, 1932, under which plaintiff is
entitled to be recognised as the sole Saranjamdar in the
Revenue Records, and that the assignments held by defendants
1 and 2 are held by them as mere potgi holders.
413
(b) That in consequence of his position of a sole Saran-
jamdar the plaintiff alone at any rate during his lifetime
has the sole right to the rights and privileges appertaining
to the post of a sole Saranjamdar, to wit, to be consulted
in the appointment of the village officers in all the
villages appertaining to the Saranjam estate, but assigned
to defendants 1 and 2 for potgi...
(c) Defendants 1 and 2 be restrained from doing any
acts or taking any steps in contravention of the aforesaid
right of the plaintiff.
(d) That it be declared that defendant 3 (Government)
have no right to change the Resolution No. 8969 of 7th June,
1932, and at any rate during the lifetime of the plaintiff."
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The first Court dismissed the plaintiff’s claim on the
merits holding that Government had the right to amend its
Resolution in the way it did.
The lower appellate Court also dismissed the suit on
three grounds: (1) that the two previous decisions of 1868
and 1908 operate as res judicata, (2) that the impugned
Resolution is intra vires and (3) that section 4 (a) and (d)
of the Revenue Jurisdiction Act bars the jurisdiction of the
Court.
In second appeal the High Court only considered the
question of jurisdiction and, agreeing with the lower appel-
late Court on the point, dismissed the appeal but it granted
the plaintiff leave to appeal to this Court.
The only question we have to consider is the one of
jurisdiction. Section 4 of the Bombay Revenue Jurisdiction
Act, 1876 (Bombay Act X of 1876), runs-
Subject to the exceptions hereinafter appearing, no Civil
Court shall exercise jurisdiction as to-
(a)...claims against the Crown relating to lands... held
as Saranjam.... "
It was strenuously contended that this is not a claim
against the Crown but one against the first and second
defendants. That, in my opinion, is an idle contention in
view of paragraphs 9 and 12 of the plaint and reliefs (a)and
(d). In any event, Mr. Somayya was asked whether he would
strike out the third defendant
414
and those portions of the plaint which sought relief against
it. He said he was not prepared to do so. I cannot see how
a plaintiff can insist on retaining a person against whom he
claims no relief as a party. I am clear that this is a suit
against the "Crown" within the meaning of section 4(a).
The next question is whether, assuming that to be the
case, it is also one "relating to lands held as Saranjam."
So far as the reliefs sought against Government are
concerned, that is clearly the case. Paragraph 9 of the
plaint challenges Government’s jurisdiction to deprive the
plaintiff of the full benefit of all rights and privileges
appertaining to the holder of a Saranjam. These rights
cannot exist apart from the lands which form part of
the Saranjam estate and the implication of the prayer is
that Government has, for example, no right to resume the
Saranjam either under Rule V on the death of the last Saran-
jamdar or under Rule IX during his lifetime. It is to be
observed that a resumption under Rule IX can only be of the
land because the rule directs that when the Saranjam is
resumed Government itself shall make provisions for the
maintenance of those entitled to it "out of the revenues of
the Saranjam so resumed." These revenues can only come out
of the land.
Relief (d) in the prayer clause seeks a declaration that
Government has no right to change Resolution No. 8969 dated
the 7th of June, 1932. That Resolution directly relates to
the land because it directs that the Gajendragad Saranjam be
resumed and the Collector is directed to take steps to place
the Saranjamdar in possession of the villages of the Saran-
jam estate etc.
It is impossible to contend that this is not a claim
relating to lands held as Saranjam.
It was next argued that if that be the case the claim
against Government can be dismissed and the plaintiff can at
least be given the reliefs claimed against the other two
defendants. These, it was contended, do not relate to land
and in any event are not claims against the "Crown".
415
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In my opinion, this is not a suit in which the rights
claimed against the other defendants can be divorced from
the claim against Government and considered separately. That
is evident enough from paragraph 10 of the plaint. In para-
graph 9 the power of Government to deprive the plaintiff of
the rights he claims is challenged and in paragraph 10 the
plaintiff explains that "therefore" the first and second
defendants are not entitled to any of the rights and
privileges of the Saranjamdar. One of those rights, as we
have seen from Rules VII and IX, is to take the revenues of
the entire estate in order that he might fulfil his
obligation regarding the payment of maintenance to certain
members of the family; and if the defendants claim to hold
their lands under the orders of Government and the plaintiff
insists on retaining Government as a party in order that it
may be bound by the decree he wants against the other
defendants it is obvious that his claim against these
defendants cannot be separated from his claim against the
Government.
In any event, if the claim against Government is to be
ignored it can only be on the basis that its orders cannot
be challenged and if the orders stand it is evident that the
plaintiff can have no hope of success because both sides
hold their respective properties on the basis of those
orders.
There are two decisions of the Bombay High Court which
have taken this view. Basalingappagouda v. The Secretary of
State for India(1) was a Watan case. Government had recog-
nised the second defendant as the Watandar. Plaintiff sued
Government and the second defendant and sought a declaration
and injunction. On being faced with the dilemma that the
suit against Government did not lie because of section 4 (a)
(3) of the Bombay Revenue Jurisdiction Act of 1876, he asked
the Court, as here, to leave the Government out of consider-
ation and decree his claim against the second defendant
alone. The learned Judges held that that would amount to
striking out the main relief sought against both the defend-
ants and would entirely
(1) 28 Born. L.R. 651.
54
416
change the character of the suit and added that "as long as
the Secretary of State is a party to the suit, such a decla-
ration could not be granted."
In the other case, Basangauda v. The Secretary
State(1), Beaumont C.J. and Baker J. took the same view.
They said--
"Mr. Gumaste, who appears for the appellant, says that
his claim is not a claim against the Government but in that
case he ought to strike out the Government. He is not pre-
pared to strike out the Government, because if he does they
will not be bound by these proceedings and will follow the
decision of their revenue tribunals. Therefore, he wants to
make the Government a party in order that they may be bound.
But, if they remain a party, it seems to me that there is a
claim against them relating to property appertaining to the
office of an hereditary officer, although no doubt it is
quite true that the appellant does not desire to get any
order against the Government as to the way in which the
property should be dealt’ with or anything of the sort, and
he only wants a declaration as to his title which will bind
Government."
They held that the jurisdiction of the courts was oust-
ed.
It was next contended, on the strength of a decision of
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the Judicial Committee of the Privy Council reported in
Province of Bombay v. Horrnusji Manekji(2). that the courts
have jurisdiction to decide whether Government acted in
excess of its powers and that that question must be decided
first. In my opinion, this decision does not apply here.
Their Lordships were dealing with a case falling under
section 4 (b) of the Bombay Revenue Jurisdiction Act of
1876. That provides that--
"...no Civil Court shall exercise jurisdiction as to.....
(b) objections to the amount or incidence of any assess-
ment of land revenue authorised by the Provincial Govern-
ment."
(1) 32 Bom. L.R. 1370. (2) 74 I A. 103
417
As pointed out by Strangman K.C., on behalf of the
plaintiff-respondent, "authorised" must mean "duly autho-
rised," and in that particular case the impugned assessment
would not be duly authorised if the Government Resolution of
11-4-1990 purporting to treat the agreement relied on by the
respondent as cancelled and authorising the levy of the full
assessment was ultra vires under section 211 of the Land
Revenue Code. Thus, before the exclusion of the Civil
Court’s jurisdiction under section 4 (b) could come into
play, the Court had to determine the issue of ultra vires.
Consequently, their Lordships held that that question was
outside the scope of the bar. But the position here is
different. We are concerned here with section 4 (a) and
under that no question about an authorised act of Government
arises. The section is general and bars all "claims against
the Crown relating to lands...... held as Saranjam."
That is to say, even if the Government’s act in relation to
such lands was ultra vires, a claim impugning the validity
of such an act would fall within the scope of the exclusion
in clause (a) provided it relates to such land.
There is a difference of opinion in the Bombay High
Court as to whether section 4 is attracted if the only
relief sought against Government is a declaration. One set
of decisions holds that that does not amount to a "claim
against Government." Dattatraya Vishwanath v. The Secretary
of State for India(1) is typical of that view. On the other
hand, Daulatrao v. Government of bombay(2), a case relating
to the Gajendragad estate, took the other view. In my opin-
ion, the latter view is correct.
In my opinion, the decision of the High Court was
right and I would dismiss the appeal with costs.
PATANJALI SASTRI C.J.--I agree.
S.R. DAS J.-- I agree.
Appeal dismissed.
Agent for the appellant: Ganpat Rai.
Agent for respondents Nos. 1 & 2: M.S.K. Sastri. Agent for
respondent No. 3; P.A. Mehta.
(1)I.L.R. 1948 Born. 809 at 820. 2) 47 Bom. L.R. 214.
418