Gangaharrao Narayanrao Majumdar v. the State of Bombay and Another (With Connected Appeals)

Judgment

to 5, the amount of the penalty of Rs. 25,000 should proportionately be reduced. There is justification for this contention. But we cannot reduce the amount, as under s. 183 of the Sea. Customs Act ,the amount has to be fixed by the concerned officer as he thinks fit. But as the basis of the order partially disappears, we give liberty to the appellant to apply to the customs authorities for giving him an option to redeem the confiscated goods on payment of a. lesser amount, having regard to the changed circumstances. In the result, the appeal is allowed in part and the order of the Collector of Central Excise is accordingly modified in terms of·the finding given by us. As the parties succeeded and failed in part, they are directed to bear their own costs. Appeal partly allowed. A mba Lal 'The L111inn o.f India 6- Others Subba Rao ]. GANGADHARRAO NARAYANRAO MAJUMDAR '9 60 October .1· THE STATE OF BOMBAY AND ANOTHER (WITH CONNECTED APPEALS) (B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRAGADKAR, K. SUBBA RAO and K. N. WANCHOO, JJ.)

Inams-Abolition of Personal Inams-Constitutional validity of Enactment-" Estate·· '"Right in an estate", meaning of-Bombay Personal Inams Abolition Act, z952 (Bom. 42 of z953), ss. 4, 5, 7, z7-Bombay Land Revenue Code, 1879 (Bom. 5 of 1879), s. 3(5) -Constitution of India, Arts. 31, 3I-A. The appellants held personal inams which were governed by Bombay Acts Nos. II and VII of 1863 by virtue of which they held their lands on payment of land revenue . which was less than the full assessment. After the coming into force of the Bombay Personal Inams Abolition Act, 1952, the appellants who were affected by it challenged the validity of the Act on the grounds, inter alia, (1) that the property which had been dealt with under the Act was not an estate.inasmuch as what ss.

4 and 5 exting11ished was the right of the inamdar to appropriate to himself the difference between the full assessment and (;1111;:11d/ian ao .\'(11 a.1·a10-an J.la,1!01;da, State of l''J11:bay SUPHK\IE COCRT REPORTS [1961] lhc quit rent and this \\;is not an cstat(' \vithin the n~(·aning of Art. .11-A of the Con<t1tution of India, ancl (2) that no compensation had been provided in the Act for taking away the proputy of the app.,IJants. Held: (1) that the right of the inamdar to appropriate to himself lhc difference br·t\\·er·n th1• full a~sessrnent anc: the quit rent \\'as a right in rcs~iect of land revt"nue and \i,as tlu·refnre a right in an estate by VJTtJJc of th" <lcfmition in Art. 31-A(2)(b). Such a right also fell under s. 3(5) ,,f the Bombay Land Rcver.11c Code, 187q, and as snct1 it \\·a~ :-in f'State unrler Art. 31-A. Acco1dingly, the Act wh"n it extinguished or modified the rights of inamdars in inam estates was protcrtcd by Art. 31-A. (2) that sub-s. (5) of s.

17 of the Act under which no compensation was to he paid for tho loss to the inamclar of what he used to get h<~r.au$C of the dificrenre hf:t\\·~rn the quit rent and the full a~scssmi'nt, v.·;.is not in\'alid as 1\rt. 31-A saved the Act from any attack under Art. 31 which was the only Article providing for compensation. CIVIL APPF.I.J.ATE .JuRISDICTIO:>: Civil Appeals I\ os. 155 to 160 of 1956. Appeals from the judgments an<l orders of the Bombay High Court diited July 6, 1954, in Specin.l Civil Application" Nos. 393, 395, 409 and 632 of l!l54; July 19, 1954, in 8pecial Ci\'il Application :No. 1205 of 1954; and ,July 30, I 954, in Special CiYil Application No. 1309 of 1954. Purshottam Trikamdas, V. M. J,imayP, E. Udaya. ralru1m and S. S. Shukla, for the itppellants. H. N. Sanyal, Additional Solicitor-Gmeral of Indio, N. P. Nathwani, [(, L. Hathi and R.H. Dhebar, for the respondents. 1960. October 3.

The .Judgment of the Court was delivered by wa .. choo J. \VANCHOO J.-These six appeals Pn a <:t>rtificatA granted by the Bombay High Court rais<' a common question as to the conRtitutionality of the Bombay Personal Inams Abolition Act, No. XL!l of 1953, (hereinafter callee! the Act.) and will be disposed of by t.his judgment. The appellants hold personal inams which are con.red by Bombay ActA Nos. IT and VII of 1863. The Act was attacked on a number of grounds in the High Court of which only two have been urged before us, namely, (i) that the property which has been dealt with under the Act is not an Gangadhortao estate and (ii) that no compensation.has been provided Narayonrao in the Act for taking away the property of the appel- Majumdar !ants. The writ petitions were opposed by the State of Bombay and the main contention on its behalf was State of Bombay that the Act was protected under Art. 31.A of the Wanchoo ], Constitution.

Before we deal with the two points raised before us, we should like briefly to refer to the rights which holders of personal inams had by virtue of Bomba.y Acts Nos. II and VII of 1863. Act' No. II extended to certain parts of the Presidency of Bombay and dealt with holders of lands in those parts who were holding lands wholly or partially exempt from the payment of government land-revenue. The Act provided for the cases of holders of such lands whose title to exemption had not till then been formally adjudicated. It laid down that if such holders of lands consented to submit to the terms and conditions prescribed in the Act in preference to being obliged to prove their title to the exemption enjoyed by them, the Provincial Government would be prepared to finally authorise and guarantee the continuance, in perpetuity, of the said land to t.he said holders, their heirs and assigns upon the said terms and subject to the said conditions.

The main provision of the Act in this respect was that such holders of land would .be entitled to keep their lands u1 perpetuity subject to payment of (i) a fixed annual payment as nazrana in commutation of all claims of the Crown in respect pf succession and transfer which shall be calculated at the rate of one anna for each rupee of assessment and (ii) a quit-rel)t equal to one-fourth of the assessment. There were other provisions in the Act for those cases where the holders of such lands were not prepared to abide by the conditions of the Act and wanted their claims to be adjudicated ; but we are not concerned with those 'provisions for present purposes.

Thus the main right which the holders of lands got by Act II was that they held their lands on payment of one-fourth of the assessment instead of full Ganf!adlta1Pt11 /\'ara}"a'uao Ma111mdar Stale of llom!.J!1_1 1Va11choo ]. ll16 ~l~PHEME COURT REPORTS [1961] assessmont plus further one-sixteenth of the a.sseeement; thus they pa.id in all five e.nna.s in the rupee of the full assessment and retained ele\·en a.nna.s in the rupee for themselves .. Act Ko. VII dealt with similar holders of la.nds in the remaining parts of the fresidency of Bombay, and me.de similar pro¥isions with this difference tba.t such holdNs of lands were to pay two e.nne.s for ea.ch rupl'C of the e.~sessmcnt e.s quit-rent under a. 6. Thus those who ca.me under Act VII pa.id only two a.nna.s in the rupee of the assessment and retained fourteen annas in the rupee for themselves. \Ve now turn to the pro¥isions of the Act. Hy s. 2(c)

" inamdar " is defined a.a a holder of personal ina.m and includes any person lawfully holding under or through him. Section 2(d) defines an "inam village" or" ioam land" whiles. 2(e) defines" personal ina.m ". Section 3 provides that the Act will not apply to certain inams including devasthan inams or inams . held by religious or charitable institutions. The Explanation to the section lays down that by the term " inams held hy religious or che.rite.ble institutions" will be meant devasthan or dhr:rmadaya iname granted or recognized by the ruling authority for the time being for a. religious or charitable institution and entered e.s such in the alienation register kept under a. 53 of the Bombay Land Revenue Code, 1879 (hereinafter called the Code), or in the records kept under the rules made under the Pensions Act, 1871.

Thus so far a.a religious or charitable institutions were concerned those ine.ms which they held from the very beginning as devasthan or dharmadaya ine.me and which were entered in the relevant records were out of the provisions of the Act. Section 4 extinguishes a.II persona.I ina.me and eave e.s expressly provided by or under the provisions of tho Act, a.II rights legally subsisting on the said date in respect of such persona.I ins.me were &leo extinguished subject to certain exceptions which a.re, however, not ma.teria.l now. Section 5 provides that all inam ville.gee or ine.m lands a.re a.nd shall be li~ble to the payment of land-revenue in accordance with the provisions of Uif tCode or the rules made thereunder a.nd the provisions of the Code a.nd the rules relating to upa.liena.ted lands shall apply Gangadharrao to such lands.

It fort er provi es t a.t a.n inamda.r xarayanrao in respect of the ina.m land in his actual possession or Majumdar . in possession of a. person holding from him other than a.n inferior holder (subject to an exception which we state of Bomb•y shall mention just now) would be primarily liable to the State Government for the payment of land-revenue due in respect of such land held by him a.nd shall · be entitled to a.II the rights a.nd shall be liable to all obligations in respect ·of such land as an occupant under the Code or the rules made thereunder or any other law for the time being in force. Thus by s. 5 the holder of a persona.I inam became for all practice.I purposes an occupant under the Code liable to pay full land-revenue and the advantage that he ha.d under Acts II and VII of 1863 of paying only a. part of the land-revenue and retaining the rest for himself wa.s ta.ken away.

The exception which we have referred to a.hove was where the inferior holder holding inam land pa.id a.n amount equal to th.e annual assessment to the holder of the persona.I inam, such inferior holder would be liable to the State <Jovernment and would become a.n occupant of the land under the Code. Section 7 then vests certain lands like public roads, paths and lanes, the bridges, ditches, dikes a.nd fences, the bed of the sea and harbours, creeks below high water mark and of rivers, streams, nallas, lakes, wells a.nd tanks, and all canals, water.courses, a.II standing and flowing water, all unbuilt village sites, a.II waste lands and all uncultivated lands (excluding lands used for building or other non-agricultura.l purposes) in the State Government and extinguishes the rights of ina.mdar in them. Section 8 <lea.ls with right to trees a.nd s. 9 with right to mines a.nd mineral products. Section 10 provides for compensation for extinguishment of rights under s. 7 w bile s.

11 gives a right of a.ppea.l from the order of the Collector under s. 10. Sections. 12 to 16 <lea.I with procedure.I matters a.nd s. 17 provides for payment of compensation for extinction or modification of a.n inamdar's right which ma.y not be covered by s. 10. Sub-section (5) JVanchoo ]. SUPRE11E COCRT REPORTS [l!J61] of s. 17 however says that "nothing in this section shall entitle any person to compensation on the ground Gan,adJ.~o 1'Cl? · Naoyan•ao that any inam village or inam land which was wholly or partially exempt from the payment of land r"veuue ha8 been undt•r thl· prn,·isions of tbis Act madP- Rubject to tho paymnnt of full a~scssm~nt in accord"nco with the provi~ions of tho Code". Section 17-A prov ides for the issue of bonds while s. 18 provides for Stott tJj !Jomha} H'a1uJ,,1:i ]. the applicatiun of the Bombay Tenancy and Agricultural I.ands Act, 1948, to any inam village or inam land or the mutual rights and obligations of au iua.mdar and his tenants.

Seetiou 19 provides for ma.king of rules and s. 20 deals with repeals and amendments. It will be seen from this analysis of the Act that the ma.in provisions are ss. 4, 5 and 7. So far as s. 7 is concerned, there is provision for compensation with respect to lands vested in the State by virtue of that· .-;cction. But no compensation is provided for the rights extinguished by ss. 4 and 5. As we have seen .... lre .. dy the ma.in right of au ina.mdar was to hold his lauds on payment of land revenue which was less than the full assessment and it is this right which has been abolished by as. 4 and 5 and the ina.mdar will now have to pay the full assessment. No compensation hati been provided for the loss which the iua.mda.r suffers by ha.l'ing to pay the full assessment. This brings us to the first contention. On behalf of the appellants it is urged that what ss.

4 and 5 extinguish is the right of the iuamdar to appropriate to himself the difference between the full assessment and the quit-rent, and this is not an estate within the meauiug of Art. 31-A of tho Constitution. The relevant provisions in Art. 31-A for present purposes are these:- " 31-A (I )-N otwithsta.nding anything contained iu art. 13, no law providing for- ( a) the acquisition by the State of any estate or of a.uy rights therein or the extinguish ment ur modification of any such rights, or (b) ........................................................... .. (c) ............................................................ . J (d) •.. ·················· .........................•.. ········ ... . (e) ............................................................. . shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of !he rights conferred by art. 14, art 19 or art. 31; Provided ..................................................... .

(2) In this article- (a) the expression• estate' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existiog law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant and in the ,States of Madras and Kerala any janmam right; (b) the expression 'rights' in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiy at, under-raiyat or other intermediary and any rights or privileges in respect of land revenue". It will be clear from the definition of the word "estate" in Art. 3l-A(2)(a) that it specifically includes an "inam" within it. As such it would be in our opinion idle to contend that inams are not estates within the meaning of the expression " estate " for the purpose of Art. 31-A. The Act specificall,y deals with inams and would thus 'be obviously protected under Art. 31-A from any attack under "Art. 14, Art. 19 or Art. 31.

It is, however, urged that the right of the inamdar to appropriate to himself that part of full assessment which was left over after he had paid the quit-rent to the Government is not a right in an estate. This contention also has no force. Inams being estates, the right of the inamdar to retain part of the full assessment over and above the quit-rent payable to the Government arises because he holds the inam-estate. The right therefore can be nothing more than a right in an estate. Besides the definition of the expression "rights" in Art. 31-A(2)(b) makes the position clear beyond all doubt, for it provides that the rights in relation to an estate would include any rights or privileges in respect of land revenue. Gangadharrao Narayanrao Majumdar State of Bombay IFanchoo }'. Gangadhatrao 1'.'arayantal) ,\1a;umda, Slate of Bombay ivanchoo ]. SVPREME COURT REPORTS [1961]

Even if it were possible to Ray that the right of the inamdar to appropriate to himself the difference betwpcn the full a.sseHsment, and the quit-rent wa.s not a. right in a.n estate aR Ruch, it would become a right in an estate by virtue of thiR inclusive definition for the ina.mdar's right could only be a right or privilege in respect of land-revenue. Besides, it is clear that the right in question falls under s. 3(5) of the Code and a.s such also it is an estate nnder Art .. 31-A. The contention of the a.ppella.nts therefore that in a.ms dealt with by the Act a.re not covered by the cxpreBBion "estate" in Art. 31-A fails. Their further contention that their right to retain the difference between full asseBSment a.nd qnit-rent is not a right in a.n estate also fails. The Act therefore when it extinguishes or modifies the rights of ina.mda.rs in the ina.m estates is clearly protected by Art. 31-A. The next contention is that the Act does not provide for compensation a.nd is therefore ultra vires in view of Art. 31.

We find, however, that the Act ha.s provided for compensation under R. 10 so fa.r as that pa.rt of ina.m lands which a.re vested in the State by s. ~ a.re concerned. Furthers. 17 provides for compensation in a. possible case where a.nytbing ha.a been left out by s. 7 a.nd the ina.mda.r is entitled to compensation for it. It is true that by snb.s. (5) of s. 17 no compensation is to be pa.id for the Joss to the ina.mda.r of w ha.t he used to get because of the difference between the quit-rent and the full assessment. It is however clear that Art. 31-A saves tho Act from a.ny a.tta.ck under Art. 31 which is the only Article providing for compensation. In this view of the matter the constitutionality of the Act cannot be assailed on the ground that it provides no compensation for extinction of certain rights. There is no force in these a.ppea.ls a.nd they a.re h(•reby dismissed with costs. One set only of hearing costs. Appeal.! dismissed.