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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: LAXMAN CHIMAN NAIK & ANR.

DATE OF JUDGMENT02/08/1973

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH

CITATION:  1973 AIR 2415            1974 SCR  (1) 399  1973 SCC  (2) 503

ACT: Bombay  Bhil,  Naik  Inam  Abolition  Act,  1955,  s.  7(1)- Compensation   for  abolition  of  inams-When  inamidar   is entitled.

HEADNOTE: On the question whether the High Court was right in  holding that  the respondents, who were inamdars, were  entitled  to compensation  on the abolition of the Bhil Naik Inams  under the  provisions  of  s. 7(1) of the Bombay  Bhil  Naik  Inam Abolition Act, 1955, HELD : A grant of the profits of land as remuneration for an office  is  resume able but a grant of  land  burdened  with service  cannot  be  resumed  unless  there  is  a  specific provision in the grant to that effect. [302 G] In the present case, since the grants were intended to be of the  soil and not to provide remuneration for  any  specific services  and there was no specific provision in  the  grant entitling the government to resume, their abolition has  the effect of extinguishing or modifying rights in property  and hence the decision of the High Court was right. [302 G-H] (a)..The  object of the grants, which date from  pre-British period was not so much to provide remuneration for  services which  were being rendered or which were to be rendered,  as to  induce the Bhils to give up their predatory  anti-social activities  by  settling  them on lands.   The  grants  were continued   on  political  considerations  by  the   British Government.  The grantees, were to render services mentioned in  clause (2) of the Sanad; but there was no provision  for resumption even if no services were required or for  failure to  render them.  The fact that express provision  has  been made for resumption only on the failure to observe the three conditions  specified in clause (3) of the sanad would  show that there was an implied prohibition for resumption in  any other contingency. [302 E-F, H to 303A] (b).  Further,  the grantees were expressly  precluded  from alienating  the  inams  or any portion of  their  income  by mortgage or otherwise, thus making a distinction between the inam  and  the income.  The definition of ’Bhil  Naik  Inam’ makes it clear that the grants were of the villages or lands and not of the income or revenue.  The conclusion that there was  a  transfer  of  land itself  is  strengthened  by  the

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provision  in  the  sanad that the Secretary  of  State  had reserved  to himself all the rights which he had to all  the mines and minerals and all powers for working and  exploring them as he liked. [303 A-C] Lakhamgouda  Basavorabhu Sardesai v. Baswantrao and  Others, A.I.R. 1931 P.C. 157, applied. First Appeal No. 326 of 1953 of Bombay High Court, approved.

JUDGMENT: CIVIL, APPELLATE JURISDICTION : Civil Appeal Nos.  1550-1551 of 1967. Appeal  by  certificate from the judgment  and  order  dated February 5, 1965 of the Bombay High Court in S.C.A. Nos. 770 and 771 of 1963. M.   N. Phadke, and S. P.  Nayar, for the appellant. N.   D.    Kharkhanis  and  A.   G.  Ratnaparkhi,  for   the respondent (in C.As. No. 1551). 300 The Judgment of the Court was delivered by MATHEW, J. The respondents filed two applications before the Additional  Collector, Nasik, under s. 7 of the Bombay  Bhil Naik Inam Abolition Act, 1955, (hereinafter called the  Act) for  compensation.   On the basis of the  applications,  the Additional  Collector, Nasik, passed two  awards  negativing the  claims.  The respondents filed two appeals against  the awards,  but they were confirmed by the Maharashtra  Revenue Tribunal.   To  quash these orders,  the  respondents  filed applications  under article 227 of the  Constitution  before the High Court of Bombay.  The High Court quashed the orders and held that the respondents were entitled to  compensation and  remitted the cases to the Additional  Collector,  Nasik for determination of the quantum of compensation payable  to the  respondents.   These two appeals, by  certificate,  are directed  against  the  common judgment of  the  High  Court quashing  the  orders  passed  by  the  Maharashtra  Revenue Tribunal. The  question for consideration in these appeals in  whether the  High Court was right in holding that  the  respondents, who  were  inamdars, were entitled to  compensation  on  the abolition of the Bhil Naik Inams under the provisions of  s. 7(1) of the Act. The  object  of the Act was to abolish the Bhil  Naik  Inams held   for  service  useful  to  Government   on   political considerations.   Section 4 states that all Bhil Naik  Inams shall  be  deemed  to  have been  abolished  and,  that  any liability  to  render  service  and  ;all  other   incidents appertaining  to  such inams are extinguished and  that  all inam villages and inam lands are resumed and shall be deemed to  be  subject to the payment of land revenue.   Section  5 provides for the re-grant to the inamdar of the lands which, on  the appointed date, that is, the date on which  the  Act came into force, were not uncultivated lands and which  were in the actual possession of the inamdar or in the possession of  a  person  holding through or from  him  other  than  an inferior bolder on payment of the occupancy price.   Section 6  provides  that all uncultivated and waste lands  and  all other  kinds  of property referred to in s. 37 of  the  Land Revenue Code situate in an inam village or inam land,  which are not the property of the individuals or of any  aggregate of persons legally capable of holding property and except in so  far as any rights of such persons may be established  in or over the same shall together with all rights in and  over the  same or appertaining thereto to be the property of  the

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State Government.  Then comes section 7. Sub-section  (1)  of  s.  7 states that  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,  such person may apply to the  Collector  for compensation.  Sub-section (3) of this section provides that nothing  in  this  section  shall  entitle  any  person   to compensation  on the ground that any land, which was  wholly or  partially exempt from the payment of land  revenue,  has been  under the provisions of this Act made subject  to  the payment   of  full  assessment  in  accordance,   with   the provisions of the Land Revenue Code. The  origin  of the Bhil Naik Inams dates back to  the  pre- British  period.  These inams were continued by the  British Government and 301 from the facts mentioned in the letter of the  Commissioner, Central  Division,  dated  August 19, 1901  referred  to  in Government  Resolution, Revenue Department dated August  19, 1902,  it is clear that the Government decided  to  continue these  inams with the holders on  political  considerations. In  para 3 of his letter, the Commissioner stated  that  the villages  were granted to-the Bhils in order to induce  them to abandon their predatory habits and to protect the country from robberies and that the grants were intended for service to be rendered towards preservation of peace in the country, although  no specific service appears to have  been  exacted from the Bhils up to that date.  In para 4, the Commissioner stated that summary settlement had not been made  applicable to  the holdings of the Bhil Naiks and that these  had  been entered  in  the accounts of Government as Saranjani  or  as held  for service and that the lands had been held from  re- mote  time on the condition of service though  probably  the service rendered had never been anything more than a general obligation.    In   paragraph  5  he  suggested   that   the alienations  should  be treated as service  inams.   By  the Government resolution dated August 19, 1902, the  suggestion of  the  Commissioner was accepted.  In  pursuance  of  this resolution,  sanads  were  issued to the  ancestors  of  the respondents in 1904.  The sanads provide as follows :-               "Whereas  the village Dharde-digar  in  Taluka               Kalyan  in Nasik District has been entered  as               inam  in the accounts of the village  for  the               year 1900-1901.  Name of the    Whole village  holder          number of the lands  Kalu Laxman    Whole village  xx   xx   xx               It is hereby resolved as follows               The  said village will be continued  as  inams               for  service  for  political  reasons  by  the               British  Govt.  on  the  conditions  mentioned               below               "1.  The  said grant will  be  continued  from               generation to generation with the male  lineal               descendants  (these include the adopted  issue               for whose adoption the Government have granted               permission) in the male line of the person who               was the holder on the 1st day of the month  of               January 1901.               If there is not alive a male lineal descendant               in  the  male line of the holder of  the  said               grant,  the  said grant will  be  discontinued               till  the Government will proclaim  their  in-               tention.   Then, it will be in the  discretion               of    the   Government   to   acknowledge    a

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             reversioner,  as  they  think  proper  or   to               forfeit the whole or part of the grant.               2.    The  holder of the said grant from  time               to  time  shall  render such  service  as  the               Collector  of the District and Magistrate  and               his  Assistant  may order from  time  to  time               appropriate to the grant and amount under this               Sanad.   And  he shall pay to  the  Government               regularly  the amount of judi or  other  taxes               which have been mentioned as above as  payable               to the Government.               302               3.    The   said  grant  shall  be   continued               subject to the following conditions, that  is,               the  holder who is entitled to hold the  grant               from time to time shall-               (1)   Behave with British Government  honestly               and faithfully.               (2)   He shall not be proved to be a robber or               a harasser of travellers or as having assisted               in such matters.               (3)   He  shall  assist the  officers  of  the               Government in the matter of keeping the peace,               and               (4)   He  shall not alienate the said inam  or               any portion of the income of the said inam  in               any  way by mortgage or otherwise.   The  said               village  is  being held subject to  the  terms               (1),   (2)_or  (3).   If  any  of   the   said               conditions are contravened in any way the said               grant  will  be  liable  to  be  forfeited  to               Government or to be attached by Government for               so long as it may deem proper.               The sanad has been granted by the Secretary of               State,  for India in Council, after  reserving               to  himself  all rights which he  has  to  all               mines and minerals and all powers for  working               and exploring them as he likes." Ultimately, the question to be asked and answered is whether the grants had the effect of conveying right in property and whether  their abolition has the effect of extinguishing  or modifying rights in the property. The object of the grants appears to have been not so much to provide remuneration for services which were being  rendered or which were to be rendered as to settle the Bhils on lands so as to induce them to give up their predatory  anti-social activities.   This  would  suggest  that  the  grants   were intended  to be of the soil and not to provide  remuneration for any specific services. The  terms of the sanad make it clear that these are  grants burdened  with  service  as  distinguished  from  grants  of revenue  or  profits  as remuneration  for  an  office.   In Lakhamgouda Basayprabhu Sardesai v. Baswantrao and Others(1) the Privy Council said that the grant of the profits of land as  remuneration for an office is resumable but a  grant  of land burdened with service cannot be resumed unless there is specific provision in the grant to that effect. Looking  to the terms of the sanad we are inclined to  think that  the  sanads  evidenced grants of  land  burdened  with service.   It is clear from the sanads that the grants  were continued   on   political   considerations   by,    British Government.  The grantees were to render services  specified in  clause  (2).  But there is no provision  for  resumption even  if no services were required or for failure to  render them.   The  fact that express provision has been  made  for

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resumption  only  on  the  failure  to  observe  the   three conditions specified in clause (3) (1)  A.I.R. 1931 P.C. 157. 303 would  show  that  there  was  an  implied  prohibition  for resumption in any other contingency. The  grantees were expressly precluded from  alienating  the inams  or  any  portion  of their  income,  by  mortgage  or otherwise.  A distinction has been made between the inam and the income in this provision.  The conclusion that there was transfer  of land itself is stregthened by the provision  in the  sanad  that  the Secretary of  State  had  reserved  to himself  all  the  rights  which he had  to  all  mines  and minerals and all powers for working and exploring them as he liked.  No reservation would have been made or necessary  if only the profits or income of the lands were granted in  the inam.  The fact that it was considered necessary to  reserve the  rights  of the State to mines and minerals would  go  a long  way to show that the grant was intended to be a  grant of  the soil.  The definition of "Bhil Naik Inam"  makes  it clear that the grants were of the villages or lands and  not of  the  income or revenue.  Section 2 of  the  Act  defines "Bhil Naik Inam";               "Bhil Naik Inam" means the grant of a  village               or  land for service useful to  Government  on               political  considerations in  accordance  with               the  terms  and conditions specified  in  Gov-               ernment  Resolution in the Revenue  Department               No.  5763,  dated  the 19th  August  1902  and               entered in the alienation register kept  under               s.  53  of  the  Code  as  "Class   VI-Village               Servants  useful to Government"  and  includes               the  land granted in Narod village of  Navapur               taluka  under Government order in the  Revenue               Department  No. 288, dated the  11th  January,               1919." In  First Appeal No. 326 of 1953 decided by the Bombay  High Court  and  referred to in the judgment  under  appeal,  the question  related to Bhil Naik Inam.  The sanad  which  fell for  consideration was also in the same form.  The.  dispute in that case was in regard to the claim made by the  inamdar to the trees standing on the land.  The appeal was argued on the  assumption that there was a grant of the soil  and  the question which was raised and decided was whether the  trees were or were not excluded from the grant.  It was held  that they  were not excluded from the grant and that the  inamdar had  a  right to the trees.  This holding  could  have  been arrived  at only on the basis that it was the soil that  was the subject matter of the grant. In  these  circumstances we think that the decision  of  the High Court was right and we dismiss the appeal with costs. V.P.S.                      Appeal dismissed. 304