THE COLLECTOR OF BOMBAY versus NUSSERWANJLRATTANJI MISTRI & OTHERS

S.C.R. SUPREME COURT REPORTS

· THE COLLECTOR OF BOMBAY ... ) . . . ,, . .. . . ·. "·

NUSSERWANJLRATTANJI MISTRI & OTHERS .. . ' (VIVIAN BosE, }AGANNADHADAS, VENKATARAMA AYYAR and SINHA JJ.] ·

Land revenue-Assessment-Right of Government to· levy-Foras tenure-Incidents-Foras Land Act (Bombay Act VI of 1851), s. 2-Land Acquisition, effect of-Land Acquisition Act (VI of 1857), s. 8 -Crown Grants Act (XV of 1857), s. 3-Scope of-Bombay City Land Revenue Act (Bombay Act II of 1876).

In the island of Bombay certain lands were held on tenure known as "Foras". Under s. 2 of Bombay Act VI of 1851 the occupants were entitled to hold the lands subject only to the payment of revenue .then payable. Between 1864 and 1867 the Government of India acquired these lands under the provisions of the Land Acquisition Act (VI of 1857). On 22-11-1938 the Governor-General sold them to certain persons under whom the present respondents claimed. In April 1942 the appellant acting under the Bombay City Land Revenue Act (Bombay Act II of 1876) issued notices to the respondents proposing to levy assessment on the lands at the rates mentioned therein. The respondents thereupon instituted two suits disputing the right of the appellant to assess the lands to revenue. They contended that under the Foras Land Act the occupants had acquired the right to hold the lands on payment of revenue not exceeding what was then payable, that the right to. levy even that asseessment was extinguished when the Government acquired the !_ands under the Land Acquisition Act, that the Governor-General having conveyed the lands absolutely under the sale deed dated 22-11-1938 the respondents were entitled to hold them revenue-free and that even if revenue was payable it could not exceed what was payable under the Foras Land Act.

Held, (i) that under the Foras Land Act (VI of 1851) the occupants of Foras lands acquired specific right to. hold th.em on payment of assessment not exceeding what was then payable.

(ii) that the right of the Government to levy assessment was not the. subject-matter of the land acquisition proceedings and that the effect of those proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Gov-ernment. · · ·

(iii) that where there is an absoiute sale by the Crow1.1 it does not necessarily import · that the fand' Js conveyed revenue-free: · ·

The question 1s one of construction of the grant. · The· rule is that grantee from the Crown gets ·only what is granted by the

1955 February 28

The· cOl;e-clOr·.·of 'Bombaj, · v. Nusserwanji Rattanj1° Mistri and others

deed and nothing. passes by_ implication. When the grant is em· bodied in deed the question Ultimately reduces itself to detern1i· nation of what was granted therronder. Section 3 of the Cro\vn Grants Act (XV of 1895) that "all provisions,. restrictions,- conditions and limitations over shall' take effect according to their tenor" does not app}y when the question is as to the liability to pay revenue.

(i~) that the Foras tenure became extinguished when the lands were acquired under the Land Acquisition proceedings and it was incapable of coming back to life \vhen the· lands were sold on 22·11-1938 and_ the respondents cannot claim right tO pay assess~ ment only at the rate at Which it was payable under the Foras Land Act.

Goswamini Shri Kamala Vahooji v. Collector of Bombay ([1937] L.R. 64 I.A. 334), Shapurji fivanji v. The Collector of· Bombay {[1885] l.L.R.- 9 Bom. 483, 488), Naoroji Beramji v. Rogers (4 Born. H.C.R. l), Deputy Collector, Calicut Division v. Aiyavu · Pillay {[1911] 9 I.C. 341), Dadoba v. Collector of Bombay {[!901] I.L.R. 25 Bom. 714), Thakur fagannath Baksh Singh v. The United Provinces {[1946] F.L.J. 88) and Collector of Bombay v.' Municipal Corpora-tion of the City of Bombay and others ([1952] S.C.R. 43), referred to.CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 74 of 1952.

Appeal by Special Leave from the Judgment and Decree dated the 10th November 1948 of the High Court of Judicature at Bombay in Appeal from Ori-ginal Decree No. 274 of 1945 arising out of the decree dated the 17th March 1945 of the Court of Revenue Judge, Bombay in Suits Nos. 7 and 23 of 1943.

C. K. Daphtary, Solicitor-General for India (Porus

A. Mehta, with him), for the appellant.

M. C. Setalvad, Attorney-General for India and farnshedji Kanga, (R. J. Kolah and Rajinder Narain, with them), for the respondents.

1955. · Feb~ary 28. was deli.vered by

The Judgment of the Court

VENKATARAMA AYYAR J.-The point for decision in this appeal is as to the liability of certain lands situated within the City of Bombay to be assessed to revenue under the Bombay City Land Revenue Act No. II of 1876. These lands were originally known as Foras lands, ·and the rights. of the occupants of

' . ...,

$.C.R. SUPREME COURT REPQRTS

those lands were settled by . Bombay Act No .. VI of 1851, called the Foras ·Act.' What these rights are, is matter in controversy between the parties, and will be presently considered. Between 1864 and 1867 the Government acquired the_se lands for the purpose of the B.B.C.I. Railway, under the provisions of Land Acquisition Act No. VI of 1857. ·On 22-11-1938 these lands, being no longer required for the purpose of the Railway, were sold by the GovernorcGeneral to Lady Pochk.hanawalla and others as joint tenants under deed, Exhibit A. On 28-3-1939 the survivor of the purchasers under Exhibit conveyed the lands in trust under Exhibit B, and the respondents are the trustees appointed under that deed. In April 1942 the appellant acting under the provi-sions of Bombay Act No. II of 1876, issued notices to the respondents proposing to ievy assessment on the lands at the rates mentioned . therein, and calling for their representation. In their reply, the respondents denied the right 9f the appellant to assess . the lands to revenue, and followed it up by instituting two suits before the Revenue Judge for establishing their rights.· In their plaints, they alleged that under the provisions of the Foras Act the maximum assessment leviable on the lands was 9 reas per · burga, and that the Government had no right· to enhance it; that the effect of the land acquisition proceedings between 1864 and 1867 was to extinguish the right of the State to levy even this assesssment, and that further, having purchased the properties absolutely from the Gover-nor-General under Exhibit A, they were entitle to· hold them without any liability to · pay revenue there-on, They accordingly prayed for declaration that· the Government had no right to levy any assessment on these lands, or, in . the alternative, that such· assessmerit should not exceed what was payable under Bombay Act No. VI of 1851. The .. appellant contested the suit. The Revenue: Judge held · that as result . of the land acquisition proceedings between 1864 and 1867, the Jands vested .in the. Government >· freed froni any 1iabi4ty to pay assessment, .and that" when the Governor-General transferred them under

19s:r Tht Collector of Bombay v. N usserwanji Rattaryi Mistri ana others V1nkatarama A.J:7DT J.

1955. -·-·. The .Collector ef Bombay v. Nusstrl.QtJ11ji RattanJi Mistri and others V enkatarama Ayyar J.

[.1955}

Exhibit withount reserving the . right to assess them, the purchasers . had the right to hold them without any liability to pay revenue. He accordingly. granted declaration . that the appellant. had no right to levy assessment, and that. the notices issued . by him under Act No. II of 1876 were . illegal. On appeal by the defendants to the High Court of Bombay, it was h.eld by Chagla, C.J., Bhagwati, J. concurring, that Act No. VI of 1851 imposed specific limit on the right_ of the Governm.ent to 'levy assessments on · the lands. il). ques-tion, th<1t, . further, by reason of the land acquisition proceedings the right of , the Provincial Government to levy assessment even within the limits prescribed by Act No. VI of 1851 was extinguished,. and that when the lands were transferred by the Central Gov-ernment to Lady Pochklianaw;illa and · dthers, they got them as revenue-free lands." In the result, ·the appeal was· dismissed. This appeal ·by· special · ·leave· is directed against ·this decision. . · · · · ·

The .statutory authority under which· th~ appellant seeks to 'Jevy assessme11t on_. th,e lands. is .. ~ction .. 8 of Bombay·A,~t :N~; II of 1876, and it is as follows:. · ...

"It .. s~'!ll . be .. the. duty. of the. Collector, subject· to the orders of Government, . to fix · a11d .. to kvv. ·the. as-. sessmeni for. land. revemie ..

. When there is no ·right· on the part ·of •the 'superior holder . in limitation · of . the ·right of : ·Government"' to assess;' the assessment shall· be fixed . at " the· discretion of the ·Collector- subject to the.• control of,:Government. When ·'there is right on ·the:· 'part of fhe' siip~rfor holder · itt • limitation · of the right of · Government, in consequence· of . specific . %nit .. fo as"sessmeni' 'having been established and · preserved, the· ·assessment" · shall not exceed such specific lirrii.t"~ · ". ' .. · It "Ya~ · ~n .. i~e' J0>ting'. · ~~t ~h~ '.;espp)lden~~ ,'.,\Yer' 'sup<;t'tor holders as 'defined .·m the ,Act, th:il. the ap-pella~f';is_s'ff~.1'n~ti~e~ to. the.¥:, in;: April )942: ID, i~ejr reply Iibt1ces ·.and· in the plamts, · the . respondents ,,.did not ·atS]S'ute:'ihaf-1xisiti1;m; _Bii(ortly s\inten4eci in teqgs of s'ectib'n' 's' that tney' had :·sp~~ifi'~',rigP,C in," ~mita­ti1irt" . '·.i,11of"'fhe; ,~ ~!!_";,_fr~ 'Tight''' i;-:-;·;7·•,-111 of the' ?-: I 11.-~:1""'l.~ Goverr,iilient to'' •. -,,r, ~-:,·I•».' ~;;~ '":·!·' ;the .

S.C.R~ SUPREME COURT REPORTS

land; and the entire controversy in the Courts below was whether - they had istablished that right; No contention was raised that they were not superior holders as defined in the Act, and that, in_ consequence, no assessment could be imposed on the lands under section 8 of the Act. In the argument before us, the contention · was ' ,, r sought to be raised -for the first time by the learned Attorney-General that the proceedings taken by the Collector under section 8 were incompetent, as that section would apply only to lands held by superior holders, that the definition of 'superior holder' in section 3( 4) as meaning "the person having the_ highest title under the Provincial Government to any land in the City of Bombay" would take in only per.Sons who held on derivative tenure from the Government, that persons who acquired lands from the Government under an outright sale could no_t be ·described as 'superior holders' within section 3( 4), and that the lands held by the respondents were therefore outside the operation of section ~8. -On behalf _of the appellant, the learned Solicitor-General objected to this question being allowed to_ be raised ·at this stage of the proceedings, as. that would involve investigation of questions of fact and -of l~w, such as whether under the tenures in the City ·-_ of Bombay, .owners held the lands_ as superior hold_ers, whether pnCler Indian jurisprudence what was paid by the occupier of land _w.as rent or .revenue, whether the prerogative. right of the Crown to assess lands subsisted in the Presidency Towns of Calcutta,_ Bom-bay .- and Madras and several other questions, for the decision -of which there - were not sufficient - materials. This objection- must be upheld. In view of ·the fact that the. respondents have, at all stages~ claimed im-munity from assessment on the basis of section 8,. _we do not, consider that. it would be proper to -allow them now to, change their front, and, take up s~nd wh91ly inconsistel).t with ,what they _had taken, when., that)n-volves an ~Q._v~s_tiga~ion, into factS - which _h~~--n~t. b~en made._ We_. must, •. therefore, _ proceed __ on . the · footing that the respondents are 'superior holders; -as ~Cl~fiiied ·-·-_-·-.1 ... ·;1_..:.··;j•

The Col/~ctor ·oj ._Bombay _v.

-Jv usserwanji

· Rattanji Mi.rt.ri and others

Venkatarama .Ayyar J.

1955 The Collector Of Bombay ·V. Nusierwatlji Ratta'!ii Mistri and others Venkalarama A.yyar j.

i316 SUPREME COURT REPORTS

in section 3( 4) of Act No. II of 1876, and that their rights are to be determined in accordance with sec-tion 8 of the Act.

Construing that section, the Privy Council laid down in Goswamini Shri Kamala Vahooji v. Collector of 'Bom-bay( 1) two propositions : that though the language of the section would more appropriately apply when the -, dispute was as to the quantum of assessment, the right to levy it not being itself controverted, it was open to the superior holder under this section to plead and prove that the State had no right to levy any assessment; and that the burden was .on the person who pleaded limitation on the right of the State to assess, to clearly and unequivocally establish it. It is, therefore, open to . the respondents to plead that the lands are wholly exempt from revenue; bur the onus of making it out lies heavily on them. The learned Attorney-General has . sought to estab. lish right in the respondents in limitation of the right of the appellant to :issess .the lands on three grounds: (l) the Foras Act No. VI of 1851, (2) the land acquistion proceedings under Act No. VI of 1857, and (3) the; sale deed, Exhibit A. Taking first "-' the Foras Act: For correct appreCiation of its prc>-visions, it is necessary to ·refer to the 'history of the lands, · which are dealt with therein. The · Island of Bombay once formed part of the Portuguese Domi-nions in India. In · 1661 when · Princess Infante Catherine was · married to King Charles II of Eng-land, it was ceded by the King of Portugal. to the British Crown as dowry, and by Royal Charter dated · 27th March 1668 King Charles II granted it >-to the East India Company. At that time ·the Island consisted only of the Fort and the . town, and "out-side the walls of the town it was scarcely more than rock and marsh which becarrie · group. of islands every day ' on high tidt" .. Vide Shapurji Jivimji v. The .Collector of. Bombay('). It appears 'from War-. den's Report 011 the Landed Tenure• . In. Bombay and 1..e. Mesuri~'s ·Report on the Fo~:is lando, that dur'-ing . the Hlth ~ntury .the East India . Company starte,d " "' "' (I) [1937) L.R. 64 I.A. 334. (2) [1885) I.L.R. 9 Bom. 483,488.

S.C.R. :SUPREME COURT .REPORTS

reclaiming these lands, and invited the inhabitants to cultivate ,them, at first without payment of any assessment and subsequently on favourable rates. These payments were called · "Foras". The meaning of this word is thus explained by Westropp, J. in his note at page 40 in Naoroji Beramji v. Rogers(1) :-" 'Foras' is derived from the Portuguese word 'fora', (Latine foras, from foris door), signifying outside. It here indicates the rent or revenue derived from outlying lands. The · whole ·island of Bombay fell under that denomination when under Portuguese rule, being then mere outlying dependency of Bassein. Subsequently · the term foras was, for the most part, though perhaps not quite· exclusively, limited to the new salt batty ground reclaimed from the sea, or other waste ground · lying outside the Fort, Native Town, and other the more ancient settled and cultivated grounds in the island, or to · the quit-rent arising. from that new salt battjr ground and .out-lying ground". Thus, the salt batty lands reclaimed from the sea came to be known as Foras lands by association with the assessments payable thereon called "Foras": The nature .of the interest which the occupants had in the Foras lands was the subject of considerable. debate in the beginning of the 19th Century. In 1804, the Company resumed some of the Foras lands for sett-ling persons displaced in the Town area, and that resulted in suit by one Sheik Abdul Ambly, wherein the right of the Company to resume the lands was challenged. The action failed, the Court upholding the claim .of the Company to resume them, but at the same time, it observed that its action in dispossessing the occupants would "appear and be fdt as grievous hardship, if not an open and downright injury". Vide Warden's Report on the Landed Tenures of Bombay, pages 60 and 61. Thereafter, the Company had the matter further investigated, and there were reports on the subject by Warden in 1814 and Le Mesurier in 1843. And ·finally· the ·Company decided to reeognise

·The Collector of Bombay v;

. Nusserwanji Rattanji Mistri and others

Ve'n:katCiramcln Ayjar J.

1955 The Collector of Bombay ,,, Nusserwa,Yi Rattanji Mistri and others

V tnkatarama AY.Y"r ],

1318 SUPREME ·coURT ·REPORTS [1955.J

the rights· Of· the occupants, and. ·that resulted in. the enactment of. Act SI of. 1851. . _ The 'relevant provisions of the. Act may now be noticed. The preamble· to the Act states that, "Whereas the East India Company are legally entitled ·to the freehold reversion of the· several lands heretofore paying render called foras, the outline whereof is delineated in plan ........ and numbered 1,. subject to certain tenancies therein at will, or from year to year; whereas it is considered expedient as of grace and favour that the rights of the said East India· Company in all of the lands included in the said plan,. .. · .... should be extinguished, save . as. hereinafter mentioned. It· iL enacted as follows :" Section 2 enacts tha.t : . "From and· -after -the said 1st day of July, the rights of the. said Company in all of· the said lands mentioned in the said plan No. 1, except those men" tioned. in the said· plan No. 2, shall be extinguished in favour of the persons who shall then hold the same respectively-. as the immediate rent-payers to the said. Company,. -saving· the. rents now severally payable .in respect · of .. such ·lands, which shall continue. payable and · recoverable by distress, or by any means by which land .revenue in Bombay is or shall be recover-able, under any .Act or Regtilation .... -'.- .. " .... Section 4 provides-: . · · ·· · . "Nothing . herein contained shall exempt such lands from , being . liable to· any further general taxes on land in' Bombay ....... "·"According to the appellant, the effect of these pro-visions ·was to grant. the lands to· the occupants.· on a· permanent ... tenure, . heritable and · alienable, • .but not further, to • grant - them on. permanent assessment. Reliance was also placed on the decision in Shapurjt /ivanji.•v. ·The. Collector of Bombay('), where it was held genem!ly that.,the Government had the• .right. under· section 8.·. of the· -Act to enhance the assessments: "on Foras lands. - There is ·some -support ·for .. :this conten-tion, .ju-the provisions. ··of : the· Act., The •• preamble

(I) [1885] l.L.R. 9 Born. 483, 488.

S.C.R: SUPREME COURT REPORTS

expressly recites that th-e occupants were tenants at will or from year to year, and that the reversion was with the East India Company. One consequence of that was that the Company had the right to eject the occupants.- -Now, what the Company did under the Act was to give up that right as matter of grace, be-cause, as already mentioned, it would appear to have invited them to settle ·on the lands and cultivate them, and it did that.by extinguishing its reversion ·as landlord .. In other words, it agreed to confer on the tenants the status of owners oflands. If that was all the scope of Act No. VI of 1851, it could not be doubted that the rights of the State to_ enhance. the assessments would not be affected, because ownership of land does not per se carry _with it an ·immunity from enhancement of assessment in exercise of sovereign rights, apd occupants ofForas lands cannot claim to be in better position by reason of the Act than owners of lands in ryotwari tracts, the assess- -men ts on which are liable to periodic· revision. But what is against the appellant is that section 2 does not stop with merely extinguishing the reversionary rights of the Company. It goes further, and saves expressly "the rents now severally payable in respect · of such lands", rent being used here in the sense of assessment, and adds "which shall :continue to be payable". Now, the contention of the respondents is that those .words conferred on the Government right to recover only the assessment which was then payable, and that there was thus limitation on its right to enhance it. It is common ground that the assessment payable on these lands at that time was 9 reas per burga, and Exhibit N shows that it was at that rate that the assessment was collected from 1858 until the lands were acquired by the Government ·in land acquisition proceedings. It is accordingly con-tended for the respondents that under the Act, the Government could not claim anything more. than 9 reas per burga as assessment on the lands. · It is urged for the appellant that the words "now severally payable" could not be construed as impos-

The Collector of Bombay v.

l•tusseru·anji Rattanji Aiistri and others

Venkatarama Ayyar J.

The Collector oj Bo111~ay Vo NU!strwanji · Rattilnji · Mistri and others -··-· Venkatartima Ayya' J.

132-0 SUPREME COURT REPORTS [1955] ing limitation on the right of the Government · to enhance the assessment, as they occur in ' ' saving clause, the scope of which was to reserve . the' rights of the Company and not to corifer on the occupants rights in addition . to what the body of the section had granted to them. It is true that the S<:tting in which these words occur is more appropriate for reserving rights in favour of the Company than for declaring any in favour of the occupants. ·But to adopt · the construction 'contended '' for by 'the' appellant ' would be to render· the words ·''now' severally 'payable"' and "which shall co'ntinue to be payable;" wholly meaning-less. Notwithstanding that the drafting is inartistic, the true import of the clause unmistakably· is that while, on the one hand, the right of the Government to recover the assessment is saved, it 'is, on· the other hand, limited to the amount then · · payable by the occupants; The contention of the respondents that under the· Foras Act they acquired specific· right to hol,d the ·lands on ' payment of assessment not exceed-in'g what was· then payab.le, must, 'therefore, be ac-cepted~ ··· ·" , · . . We have next to decide what effect the proceedings taken by the Government under. the. Land Acquisition Act No. VI of 1857 during the years 1864 to 1867 have 'on the rights of the parties. Section VIII of the Act is as follows : · · "Whe~ the Ccillector or other offic~r has , made an award or . directed reference to . arbitration,. he · may take immediate. possessiqn. of the. land. which shall thenceforward be vested absolutely . 'in · ,the Govern-ment, , free from all other ' estates, rights, titles. and interests". ·

The' <:Ontention of' the respondents "which" has found favour with the· Courts. below is that under that section the effect of ·the vesting of the 'lands in the Government was to extingui~h · whatever' interests:· were · previously held ·over them, that the. right"'of ··the Government t<i levy assessment was such an interest, and that it was also extinguished .. It is ar'1\led that ·when. lands. are acquired un.der. the, Act,. the valuation that is made is of · all the interests subsisting thereon, including the

S.C.R. SUP.REME COURT REPORTS

rights of the Crown. to assess the lands, as well as the interests of the claimants · therein, that what is paid to the owners . is not the full value of the lands but the value . of.their interests therein, deduction being made of . the value of the right of the Government to assess from out of the full value, and .that, in effect, there was an ;iward of compensation for the right to assess, and that, therefore, that right equally with the rights of the claimants. over the lands would be extinguished. One pf the awards has been marked as Exhibit J>, · and the respondents rely on the recitals therein that the compensation to the claimants was "for their interest in the said lands". The award, it must be mentioned, directs the Government to pay the claimants the amounts specified therein, but con-tains no provision for payment of any sum as com-pensation to the Government for its right to ·assess the lands; nor does it even value that right. · But the respondents contended that the Government being the authority to pay must be deemed to have paid itself, and that, in any event, if they were entitled to compensation, their failure to claim it could not affect the result, which was that the right to levy assess-ment would be extinguished. We are unable to accept this contention. When the Government acquires lands under the provisions of the Land Acquisition Act, it must be for public purpose, and with view to put them to that pur-pose, the Government acquires the sum total · of all private interests subsisting in them. If the Govern· ment has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in position to pass it on absolutely for public user. In In the Matter of the Land Acquisi-tion Act: The Government of Bombay. v. Esupali Sale-bhai(1) Batchelor, J. observed : "In other words Government, as it seems to me, -are not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compen-

(1) [1909] I.L.R. 34 Born. 618, 636.

.i.9s_~ Tht Collector ef Bombay v .. . Nusserwanj'i Rattanji Mistri and others v enkataraman Ayyer J.

1955 The Collector of Bombay Nussrrwanji Rattanji Mistri and other' Venkatarama ,dyyar J. ·

1322 STiJP.RiEME CG>GRT REPORTS

sation based ·upon· the· market value· of the whole land, .must be distributed •among. the· dainiants". ,_,,;: • -There,. 'the <;:overnment 'c!ainied ownership 'ofthe'land on whith there - stciod · buildings '-belonging' · to the claimants,' and it was lleld that the Government was boilnd to acquire -and pay· only for the · superstruc-ture, as it was already• the owner of the site:· Simi-larly in Deputy Collector, Calicut' Division v. Aiyai1u Pi/lay('), Wallis, J. (as he - then was) observed : "It is, in my opinion, -clear that the Acf does not contemplate or provide ·for the acquisition of any interest which already belongs -to Government in· land which is being acquired under the· Act,' but only for the acquisition of such interests in the land as 'do not already belong to the' Government". With these observations, we are in ·entire agreement. When Government possesses an interest in land which is the subject of -acquisition under the Act, that inte-rest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the· nature and· value of that interest will no doubt be necessary for determin-ing the compensation payable for the interest out-standing in the claimants, but that would not make it the subject of acquisition. The language of section VIII of Act No. VI of 1857 also _ supports this _con-struction. Under that section, the lands _vest in the Government "free from all other estates, rights, titles and interests", which must -clearly mean other than those possessed by the Government. It ' is on this understanding of the section that the award, · Exhibit P, is framed. The scheme of it is that the interests of the occupants are ascertained and valued, and the Gov.ernment · is-directed · to pay the compensation fixed for them. There is no valuation of the right of the Government to levy assessment on the lands, and there is no award of compensation therefor. We have so far assumed with the re.spondents' that the right of the Government to levy assessment is an interest . in land within the -meaning of sec(ion VIII (1) [1911] 9 I. C. 341.

of Act VI of 1857. But is thi~ ·.assumption well~ founded? We think not. In· ·its · normal acceptation, "interest" means one or more of those rights ·. which go to make ·up "ownership". It will include for example, mortgage, lease, charge, easement . and the like, but the right to impose tax on land is · prero-gative right of the Crown, paramount to the owner-ship over the land and outside it. Under the scheme of ··the Land Acquisition Act, what is acquired is only the ownership over the lands, or the inferior rights comprised therein. Section 3 (b) of the Land Acquisi-tion Act No. I of 1894 defines "person interested" as including "all persons claiming an interest in com-pensation to be made on account of the acquisition of land under this Act, and person shall be deemed to be interested in land if he is interested in an ease-ment affecting the land". Section 9 requires that notices should be given to all persons who are in-terested in the land. Under section 11, the Collector has to value the land, and apportion the compensa-tion among the claimants according to their interest in the land. Under section 16, when the Collector make an award "he may take possession of the land which shall thereupon vest absolutely in the Govern-ment free from all encumbrance". The word "en-cumbrance" in this section can only mean interests in respect of which compensation was made . under section 11, or could have been claimed. It cannot include the right of the Government to levy assess-ment on the lands. The Government is not "per-son interested" within the definition in section 3(b), and, as already stated, the Act does not contemplate its interest being valued or compensation being awarded therefor. It is true that there is in Act No. VI of 1957 noth-ing corresponding to section 3(b) of Act No. I of 1894, but an examination of the provisions Act No. VI of 1857 clearly shows that the subject-matter of acquisi-tion under that Act was only ownership over the lands or its constituept rights and not the right of the Government to levy assessmeflt. The provisions re-lating to the issue of notices to, pei;-sons . interested

1955 The Collector of Bombay v. Nusstrwanji Rattanji Mistri ana others Venkatarama Ayyar J.

T ht Coll.tctor of · Bombay v. Nasserwanji. RattanJi Minri and others Venkatatamli Ayyar J.

and. the apportionment of compensation among them are substantially· the same. Moreover, under .section VIII the Government is to take the lands free . from -all other "estates, rights, title and interest", and "in-terest'; must, in the context, be construed eiusdem generis with "estates" etc., as meaning right over lands, of the character of, but not amounting to an estate, and cannot include the prerogative right to assess the lands. It must accordingly be held that the effect of the land acquisition proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Government, that the right of the latter to levy assessment was not -the subject-matter of those proceedings; and that if after the award the lands were not assessed to revenue, it was because there could be no question ·of the Gov-ernment levying assessment on its own lands. Then there remains the question whether the sale deed, :£xhibit A, imposes any limitation on the right of the Crown to assess the lands. The deed conveys the lands to the puchasers absolutely "with all rights, easements and appurtenances whatsoever" to be held "for ever';. It does not, however recite that they are to be held revenue-free. But it is argued for the respondents that where there is an absolute sale by the Crown as here, that necessarily imports that the land is conveyed revenue-free; and section 3 of the Crown Grants Act No. XV of 1895 and certain obser-vations in Dadoba v. Collector of Bombay(') were relied on as supporting this contention. Section 3 of Act No. XV of 1895 is as follows: "All provisions, restrictions, conditions and limi-tations over contained in any such grant or transfer as aforesaid shall be valid and take affect according to their tenor any rule of law, statute or enactment of the Legislarure to the contrary notwithstanding". The contention is that as the grant is of freehold estate without any reservation it must, to take effect according to its tenor, be construed as granting ex-emption from assessment to revenue. But that will be extending the bounds of section 3 beyond its con-(!) {!gO!] I. L. R. 25 Born. 714.

' . --,,

tents. The object of the Act as declared m the preamble is to remove certain doubts "as to the extent and operation of the Transfer of Property Act, 1882, and, as to the power of the Crown to impose limitations and restrictions upon grants and other transfers. of land made by it or under its authority". Section 2 enacts that the provisions of the Transfer of Property. Act do not apply to Crown grants. Then follows section 3 with positive declaration that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor. Read-ing the enactment as whole, the scope of section 3 is that it saves "provisions, restrictions, conditions and limitations over" which would be bad under the · provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyi;nent repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But no question arises here as to th.e validity of any provision, restriction, condition, or limitation over, contained in Exhibit on the ground that it is in contravention of any of the provisions of the Transfer of Property Act, and there is accordingly nothing on which section 3 could take effect.It is argued by the learned Attorney-General that this limitation on the scope of the Act applies in terms only to section 2, and that section 3 goes much further, and is general and unqualified in its opera-tion. The scope of section 3 came up for consideration before the Privy Council in Thakur Jagannath Baksh Singh v. The United Provinces (1). After setting out that section, Lord Wright observed: · "These general words cannot be read in their ap-parent generality. The whole Act was intended to settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be read with reference to the general context ........ " In this view, section 3 must also be construed in the light of the preamble, and so construed, it cannot, for the reasons already given, have any bearing on

(I) 1946 F. L. J. 88.

10-90 S. C. India/59

The Collector of (~'.S!:, Bombay v.

Nusserwanj

Rattanji Mis ri and others

Venkatarama Ayyar J.

The Collector of Bombay v • . NUsserwanji Rattanji Mistri and olhers JI enkatarama Ayyar J.

the rights of the parties. Moreover, that section only enacts that "all provisions, restrictions, conditions and limitations over" shall take ·effect · according to their tenor, and what is relied on is not any provi-sion, restnct1on, condition or limitation over, in Exhibit which according to its tenor entitles the respondents to hold the lands rent-free, but the ab-solute character of the interest conveyed under Exhibit A. Therefore, section 3 does not in terms apply. The respondents also relied on certain observations in Dadoba v. Collector of Bombay (1) as supporting their contention. There, the facts were that the Govern-ment had granted one parcel of land to the Free Church Mission of Scotland revenue-free under deed dated 1-10-1884. By another deed dated 20-12-1887 they released their right of reversion on two other parcels of land held by the Mission as tenants but "subject to the payment of taxes, rates, charges, assessments leviable or chargeable in respect of the said premises or anything for the time being thereon". On 16-1-1888 the Mission sold all the three parcels to one Janardan Gopal, and the Secretary of State joined in the conveyance for effectually releasing the rever-sion of the Government. Before Tanardan Gopal purchased the lands, there had been correspondence between his solicitors and the Government as to the assessment payable on the lands, and the Government had intimated that it would be 9 pies per square yard per annum. Subsequent to the purchase, the Collector raised the . assessment payable on the lands, and the point for decision was whether he could lawfully do. so. In deciding that he could not, Sir Lawrence Jenkins stated that the purchaser had paid full value for the lands in the belief induced by the Government that the assessment of 9 pies per sq. yard would be permanent, and that on the facts, the case fell within section 115 of the Evidence Act, and that the Govern-ment was estopped from enhancing the assessment. He was also prepared to hold that t\le correspondence between the purchaser and the Government prior to

(1) [1901] I. L. R. 25 Born. 714.

the sale amounted to collateral contract not to raise the assessment. Chandavarkar, J., concurred in the decision, and in the course of his judgment observed: " .... when we have regard to the 'nature of the transaction, viz., that Government was selling the property out-and-out as any private proprietor-when we look to the whole of the language used .... the inten-tion of the parties must be taken to have been that the purchaser was to be liable to pay the amount of 9 pies per square yard per annum then levied as assessment and no more".These observations have been relied on as supporting the contention that when ther.e is an absolute sale by the Government, it amounts to an agreement not to levy more assessment than was payable at that time. But the remarks of the learned Judge have reference to the recitals in the deed dated 20-12-1887 and the negotiations between the purchaser and the Govern-ment which are referred to in the passage, and not to the .character of the transfer as an absolute sale; and the decision is based on finding of estoppel or colla-teral contract deducible from the correspondence bet-ween the purchaser and the Government. Neither section 3 of the Crown Grants Act, nor the observa-tions in Dadoba v. Collector of Bombay(1) lend any sup-port to the contention that an absolute sale of lands by the Government ipso .facto confers on the purcha-sers right to hold the lands free of revenue. The question then is whether on the terms of Exhibit such right could be held to have been granted. There was some discussion at the Bar as to the correct rule of construction applicable to the deed, Exhibit A. It was argued by the learned Solicitor-General for the appellant that being Crown grant, Exhibit should be construed in favour of the Crown and against the grantee. On the other hand, it was argued by the learned Attorney-General that it should make no difference in the construction of the grant, whether the grantor was the Crown or subject, as (!) [1901] I.L.R. 25 Born. 7i4, ;

The Collector of Bombay v. N usserwanji Rattanji Mmri and others

Venkatarama Ayyar J.

The Collector of Bombqy v.

Nusserwanji Rattanji Mist;i and others Venkatarama Ayyar J.

the question in either case was what had been granted; and that must be determined on the language of the deed. When closely examined, it will be seen that there is no real conflict between the two propositions. The former is in the nature of rule of substantive law; and its scope is that whereas the transferee from subject acquires, unless . the contrary appears, all the rights which the transferor has in the property as enacted in section 8 of the Transfer of Property Act, as grantee from the Crown gets only what is granted by the deed, and nothing passes by implica-tion. But when the grant is embodied in deed, the question ultimately reduces itself to determination of what was granted thereunder. What the Court has to do is to ascertain the intention of the grantor from the words of the document, and as the same words cannot be susceptible of two different meanings, it makes no difference whether they occur in grant by the Crown or by the subject. If the words used in grant by subject would be effective to pass an in-terest, then those words must equally be effective to pass the same interest when they occur in Crown grant. Dealing with this question, Sir John Coleridge observed in Lord v. Sydney ( [1]) :

"But it is unnecessary for their Lordships to say more on this point, because they are clearly of opinion, that upon the true construction of this grant, the creek where it bounds the land is ad medium filum, included within it. In so holding they do not intend to differ from old authorities in respect to Crown grants; but upon question of the meaning of the words, the same rules of common sense and justice must apply, whether the subject-matter of construc-tion be grant from the Crown, or from subject; it is always question of intention, to be coller ted from the language used with reference to the surrounding circumstances".

Exhibit has to be construed in the lignt of these principles. As already stated, there is no recital in the deed that the purchasers are entitled to hold the lands free of assessment On the other hand, it (1) [1859] 12 Moore P.C. 473, 496, 497; 14 E.R. 991, 1000.

expressly provides that the properties will be subject "to the payment of all cesses, taxes, rates, assess-ments, dues and duties whatsoever now or hereafter to become payable in re.~pect thereof", which .words would in their natural and ordinary sense cover the present assessment. In Dadoba v. Collector of Bom-bay (1), the Court had to consider clause similar to the above contained in deed executed by the Gov-ernment in favour of the Mission on 20-12-1887. Dis-cussing the effect of this clause on the rights of the plaintiff to hold the property permanently on an assessment of 9 pies per sq. yard, Chandavarkar, J. observed:

"When that deed says that the property was sold 'subject to the payment of all taxes, rates, charges, assessments leviable or chargeable', it leaves the ques-tion open as to what the taxes etc., are which are 'levi-able or chargeable'. Extrinsic evidence of that is ad-missible, for it neither contradicts nor varies the terms of the deed, but explains the sense in which the parties understood the words of the deed, which; taken by themselves, are capable of explanation : see Bank of New Zealand v. Simpson(2)''. In that case, the dispute was not as to the liability to pay any assessment but to the quantum of assessment payable, and it was possible view to take that the clause in question was not decisive on that question, and that it was left open. But here, the question is whether right was granted to the purchaser to hold the lands free from liability to be assessed, and the clause in Exhibit clearly negatives such right. Even if we are to regard the question as left open, as observed in Dadoba v. Collector of Bombay(!) , it will not assist the respondents, as they have not established aliunde any right to hold the lands free from assess-ment. It must, therefore, be held that far from ex-empting the lands from liability to be assessed to revenue, Exhibit expressly subjects them to it. It was finally contended that even if the land acqui-sition proceedings between 1864 and 1867 had not the (\) [1901] I.L.R. 25 Born. 714, {2) 1900 A.C. 182.

The Collector of Bombay v. Nttsserwanji Rattanji Mistri and others

Venkatarama Ayyar :J,

1955 The Collector of Bombay v. Nusserwanji Rattatifi Mistri and Others V enkatarama ·· Ayyar ].

S.C.R. SUPREME COURT REPORTS

Das, J. in Collector of Bombay v. Municipal Corpora-tion of the .City of Bombay and others (1) :-"The immunity from the liability to pay rent .is just as much an integral part or an inseverable inci-dent of the title so acquired as is the obligation to hold the land for the purposes of market and for no other purpose".

But the point for decision there was whether the Municipal Corporation of Bombay could acquire by prescription right to hold the lands rent-free, they having entered into possession under resolution of the Government that no rent would be charged. And the passage quoted above merely laid down that when title to the land was acquired by the Municipal Corporation by prescription, one of the rights acquired as part of, the prescriptive title was the right t.o hold the lands revenue-free. But the question here is whe-ther the right to hold the lands under fixed assess-. ment survived after the acquisition by the Government under the land acquisition proceedings, and that de-pends on the effect of section VUI of Act .VI of 1857. If, as observed in the . above passage, the liability to pay assessment was "an integral part or an insever-able incident of the title", then surely it was also extinguished along with the title of the occupants under section VIII of Act No. VI of 1857.There ·is another difficulty in the way of accepting the contention of the respondents. The Foras Act was repealed in 1870 by Act No. XIV of 1870 long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were no longer available in respect of the lands. Section 1 of Act No. XIV of 1870 saves rights "already acquired or accrued'', and it is argued that the rights now claimed are within the saving clause. But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal, and the rights now claimed (I} 1952 S.C.R. 43, 52.

The Collector of Bombay v. Nusserwanji Ratlanji Mistri and others Venkatarama Ayyar ].

'955 The Collector of Bombay v. Nusserwanji Rattanji Mislri and others Venkatarama Ayyar J.

1955 March I

by the respondents are not within the saving clause. In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the res-pondents. We accordingly allow the appeal, set aside the judgments of the Courts below, and dismiss both the suits instituted by the respondents with costs through-out.

Appeal allowed.

SURAJ PAL

THE STATE OF UTTAR PRADESH. [VIVIAN BosE, JAGANNADHADAS and B. P. SINHA JJ.J

Indian Penal Code (Act XLV of 1860), ss. 302, 307-Charges and conviction by trial court under s. 302 read with s. 149 and under s. 307 read with s. 149 of the Code-Conviction by the appellate couri under ss. 302 and 307 of the Code-Legality-Code of Criminal Procedure (Act V of 1898), ss. 236, 237-Applicability-Retrlal.

Where person has been charged along ·with others under ss. 302 and 307 of the Indian Penal Code each, only as read with sec-tion 149 of the Code, his convictions and sentences for the sub· stantial offences under ss. 302 and 307 of the Code are erroneous. The absence of specific charges in this. behalf is serious lacuna in the proceedings, inasmuch as the framing of specific and distinct charge in respect of every distinct head of criminal liability consti· tuting an offence is the foundation for conviction and sentence cherefor. The conviction in these circumstances under ss. 302 and 307 of the Code and sentences of death and transportation for life -cannot be maintained unless the Court is satisfied, on the facts of the case, that the accused has not been prejudiced in his trial. Whe· · ther or not in such situation the questioning of the accused during the course of his examination under s. 342 of the. Code of Criminal Procedure in relation to the offences under sections 302 and 307 of the Indian Penal Code can be relied upon as obviating the likelihood of prejudice has to be determined \Vith reference to the facts and ircumstances of each case.

All the circumstances of the case and the evidence and materials on the record should be looked into· on the question arising in such situation as to whether retrial should be ordered or not ..

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 139 of 1954.