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PETITIONER: THE COLLECTOR OF SOUTH SATARA & ANR.

       Vs.

RESPONDENT: LAXMAN MAHADEV DESHPANDE & ORS.

DATE OF JUDGMENT: 13/02/1963

BENCH: SHAH, J.C. BENCH: 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,

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[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.

JUDGMENT: 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 some  time 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

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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.

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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

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             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

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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

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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.  61