judgement:
Appeal No. 4568 of 1991.
From the Judgment and Order dated 30.1.89 of the Punjab & Haryana High Court in LPA No. 1251 of 1987.
WITH CA Nos 4569 4686/91 482 M. Chandra Sekhar, Additional Solicitor General, G.L. Sanghi, Hatbans Lal, Har Dev Singh, S.P. Goyal, Harinder Pal Singh, Ms. Naresh Bakshi, S.M. Sarin, P.N. Puff, M.K. Dua, Ms. Madhu Moolchandani, Manoj Swamp, Dr.(Ms.) Meera Agarwal, R.C. Mishra, M.N. Krislmamam, K.P. Sunder Rao, Attar Singh, S.N. Terdal, Hemant Sharma, T.C. Sharma, N.D. Garg, Ms. Kusum Chowdhary and S.P. Sarin for the appearing parties.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
As the controversy before us is a limited one and relates only to the question of granting of benefit of the provisions of Section 23(1 A) introduced into the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act") by the Land Acquisition (Amendment) Act, 1984, (referred to hereinafter as "the Amendment Act of 1984") only a few facts are necessary for the appreciation of the submissions made before us.
This appeal, arising out of S.L.P. (Civil) No, 14297 of 1990 by Special Leave, is directed against the judgment of a Division Bench of the Punjab and Haryana High Court in Letters Patent Appeal No.1251 of 1987.
The other appeals before us are connected appeals filed by the Union of India or the claimants.
The respondent was the owner of a piece of land in one of the villages in District Bhatinda in Punjab.
Land admeasuring 74375 acres situated in various villages in Bhatinda District including the land of the respondent was acquired by the appellants under the said Act.
The Notifications under Sections 4 and 6 of the said Act were published on May 10,1979 and March 27, 1981, re spectively.
The Special Land Collector made and declared his award of compensation in respect of the acquisition of the said land and several other plots of land on March 31,1981.
Being aggrieved by the said award, the respondent and other landowners filed Reference applications under Section 18 of the said Act which were decided by the learned District Judge concerned in 1985 and 1986.
The land acquired was classified into various grades and compensation awarded accordingly.
In the case before us and several other similar cases the benefits under Section 23(1 A) of the said Act were granted to the land owners.
The State appealed to the High Court.
In several other cases where the land owners were not satisfied with the compensation awarded, including the cases where the benefits conferred by Section 23(1 A) were not awarded the land owners filed appeals before the High Court.
483 What is relevant for our purpose is that a learned Single Judge of the High Court confirmed the grant of bene fits under Section 23(1 A)of the said Act where such bene fits had been granted by the learned District Judge and awarded the same where that had not been done by the learned District Judge.
Letters Patent Appeals were filed by the State being dissatisfied with the judgment of the learned Single Judge.
It was submitted on behalf of the Union of India before the Division Bench deciding the Letters Patent Ap peals that the claimants/land owners were not entitled to the benefit of Section 23(1 A) of the said Act introduced by the said Amendment Act, 1984 as aforestated.
It was submit ted on behalf of the appellants that the right to get addi tional amount at the rate of 12% per annum on the enhanced amount of compensation from the date of Notification under Section 4 of the said Act and till the date of the award of the Collector or the date of taking possession whichever is earlier conferred under the provisions of Section 23(1 A) of the said Act was available only in cases where the Collector made his award after 30th day of April, 1982, being the date of the introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People, whereas in the present case, the Collector had made his award on March 31, 1981.
Reliance was placed on the Judgment of a Full Bench of the Punjab and Haryana High Court in State of Punjab vs Krishan Lal, AIR (1987) Punjab and Haryana, 222.
The Divi sion Bench repelled this contention and pointed out that the learned Chief Justice H.N. Seth, who spoke for the Full Bench in Krishan Lal 's case (supra) had explained that judgment in the subsequent decision rendered in Maya Devi and Others vs The Union Territory of Chandigarh, Punjab Law Journal (1988) 189.
and pointed out that the land owner was entitled to the additional amount in terms of Section 23(1 A) of the Amendment Act of 1984 if the proceedings for determination of compensation were decided after September 24, 1984, and since the Regular First Appeal in respect of the proceedings for determination of the compensation was decided after September 24, 1984, the Court while adjudi cating upon the amount of compensation payable to the claim ant was bound to grant the additional amount in terms of Section 23(1 A) of the said Act.
The Division Bench in its impugned judgment gave to the claimant the benefit of the added amount referred to in Section 23(1 A) of the said Act.
The same submissions have been made on behalf of the respective parties before us.
Before discussing the submissions of the respective parties, it would not be out of place to set out the rele vant provisions of the said Act.
The said Act, namely, the Land Acquisition Act, 1894, provides for compulsory acquisition of land.
The term 'Award ' has not been defined in 484 the said Act.
Sub clause (d) of Section 3, the definition section, defines the expression 'Court ' as follows: "(d)the expression 'Court ' means a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed, as it is hereby empowered to do, a special judi cial officer within any specified local limits to perform the function of the Court under this Act. ' Part II of the said Act deals with the question of acquisition of land.
Section 11 of the said Act deals with the enquiry and award of compensation by the Collector.
Section 11 A which was introduced into the said Act by the Land Acquisition (Amendment) Act, 1984 (Act No.68 of 1984) provides for the period within which the award shall be made.
Generally speaking, it prescribes that the period for making the award is limited to two years, and the section provides that, if the award is not made within that period, the entire proceedings for acquisition of land shall lapse.
There is a proviso to the said section and an Explanation, but it is not necessary to consider the same for the purpose of this case.
Sub section (1) of Section 18 which is includ ed in Part III of the said Act runs as follows: "18.
Reference to Court (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determina tion of the Court, whether his objection be to the measurement of the land, the amount of compensation, the person to whom it is pay able, or the apportionment of the compensation among the persons interested." Section 23 deals with the matters to be considered by the Court for determining the compensation to be awarded for the land acquired under the said Act.
We may mention here that under the general scheme of the said Act, the landowner whose land has been acquired is entitled to be paid the market value of the land acquired as prevailing at the time of the publication of the notification under Section 4 issued together with the solatium at the prescribed rate in consideration of the compulsory nature of the acquisition.
Prior to the coming into effect of the Amendment Act of 1984 solatium was fixed at the rate of 15 per centum.
Sub section (1 A) which was introduced into Section 23 of the said Act by the Amendment Act of 1984 runs as follows: "In addition to the market value of the land, as above provided, the Court shall in every case award an amount calcu 485 lated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publi cation of the notification under Section 4, subsection (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
" By the said Amendment Act of 1984 the expression "thirty per centum" was substituted in place of the expression "fifteen per centum" in sub section (2) of Section 23 of the said Act.
Sub section (2) of Section 23 now runs as follows: "(2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition." .lmo
These amendments were effected in the Land Acquisition Act (the said Act) by the Land Acquisition (Amendment) Act, 1984, ("the Amendment Act of 1984") as set out earlier.
Sub sections (1) and (2) of Section 30 of the Amendment Act of 1984 run as follows: "30 Transitional Provisions: (1) The provisions of sub section (1 A) of Section 23 of the principal Act, as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to, (a) every proceedings for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 the date of intro duction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People, in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the com mencement of this Act.
(2) The provisions of sub section (2) of Section 23 and Section 28 of the principal Act, as amended by Clause (b) of Section 15 and Section 18 of this Act respectively shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against 486 any such award under the provisions of the principal Act later the 30th day of April, 1982, the date of introduction of the Land Acquisition (Amendment) Bill.
1982, in the House of the People and before the commence ment of this Act.
" (emphasis supplied by us) On behalf of the appellants reliance was placed by learned Counsel on the decision of this Court in Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama, [1990] 1 SCC 277.
The respondent, on the other hand, placed strong reliance on the decision of a Full Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Government of Goa, Daman Diu and Another etc, AIR 1987 Bombay 214.
On the basis of the aforesaid judgment of the Bombay High Court it was submitted by the respondent/claim ant that a wide and liberal interpretation should be given to the provisions of sub section (1 A) of section 23 and the amount calculated as set out in the said sub section awarded in all cases where any proceeding was pending in any court including the High Court or this Court in connection with the determination of compensation for the land acquired.
We may mention that both the parties referred us to the deci sion of a Constitution Bench of this Court in Union of India and Another etc:.
vs Raghuvir Singh (dead) by Lrs etc; , We propose to discuss these decisions a little later but before doing so, we propose to analyse the relevant provisions of the said Act and the effect thereof.
A perusal of the provisions of sub section (1 A) of Section 23 makes it clear that the said sub section deals with substantive rights and it confers a substantive right to claim the additional amount calculated as set out in the said sub section in the circumstances set out therein.
Similarly, sub section (2) of Section 23 also confers a substantive right on the claimant to a higher solatium.
Under the well settled rules of interpretation, the said provisions of the said Act, being substantive in nature, can have only prospective application unless the language in which the provisions are couched, read in the context, shows that the intention of the legislature was to give retrospec tive effect to them.
The language of sub section (lA) of Section 23 shows that a duty is cast on the court tO award an amount calculated as stated therein in addition to the market value of the land acquired for the period commencing from the date of the publication of the Section 4 Notifica tion to the date of the award of the Collector or the date of taking possession, whichever is earlier.
(Emphasis supplied) The expression "award" used in section 23 (I A) suggests that the 487 intention of the legislature was to make the provisions of the said subsection applicable to cases where the Collector had yet to make his award or the Trial Court heating the Reference under Section 18 of the Land Acquisition Act had still to make its award after the coming into force of the said sub section on September 30, 1984.
The expression "award" is to be distinguished from the expression "decree" and hence, it appears that in the absence of any contrary or inconsistent provision in the said Act the provisions of sub section would not come into play where the award had been made by the Collector earlier as well as by the Refer ence Court but ton the date of coming into effect of the said sub section, an appeal from the said award might have been pending in a court.
In that case, the Court would not be "awarding" any amount but would be making a "decree" for an amount.
By reason of the provision of section 30(1)(a) of the Amendment Act of 1984 the provisions of section 23(1 A) of the said Act were, by a deeming provision, made also ap plicable to every proceeding for the acquisition of land under the said Act where the Collector had not made his award by April 30,1982.
On a correct interpretation of the provisions of section 23 (1 A) read with section 30(1)(a) of the Amendment Act of 1984, an additional amount calculated in the manner indicated in section 23(1 A) is also payable in those cases where the Collector had not made his award on or before April 30, 1982, even in cases where the court might have made its award before September 24, 1984.
It is true that the aforesaid construction we are giving to the provisions of Section 23(1 A) and Section 30(1)(a) will, in a sense, limit the benefits strictly conferred by Section 30(1)(a) to only those cases where the Collector as well as the Court have made their respective awards between April 30, 1982 and September 24, 1984 but, in our view, that cannot be helped as that is the result of the plain grammatical construction of the clear language used in the relevant provisions.
We are of the opinion that we would not be justified in giving an unduly restricted meaning to the provisions of Section 23(1 A) unwarranted by the plain language of that sub section as appears to have been done in the case of Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama discussed more particularly hereinaf ter, in order to give a wider meaning of the provisions of Section 30(1)(a).
Section 23(1 A) refers clearly to the duties of the Court.
As we have already pointed out, the court is defined by Section 3(d) as the principal court of original jurisdiction, except in the circumstances set out in the said sub section, which would be the court having jurisdiction to decide the reference under Section 18 of the said Act.
There, is therefore, no warrant to read in the place of the word 488 "Court" in Section 23(1 A) the word "Collector".
Moreover, the decision of such a court determining compensation is regarded as an award under the said Act.
In the light of these provisions, there is no warrant to give an unduly restricted meaning to Section 23(1 A) of the said Act, as pointed out above.
Coming now to the decisions cited before us we find that in the case before the Full Bench of the Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Govern ment of Goa, Daman and Diu and Another etc.
(AIR 1987 Bombay 214) the facts were that the Notification under Section 4 of the said Act was published on October 3, 1969, in the Gov ernment Gazette of the Government of Goa.
The Notification under Section 6 was published on June 10, 1971 The Land Acquisition Officer declared his award on August 2, 1972.
All these events undoubtedly occurred prior to April 30, 1982.
However, on a Reference made under Section 18 of the said Act on December 24, 1973, the Civil Court investigated the claim and gave its award on June 24, 1985.
The award was, therefore, made by the Court not before April 30, 1982, but after September 30, 1984, when the provisions of the Land Acquisition (Amendment) Act, 1984, had already come into effect.
It was, therefore, strictly speaking, not necessary for the court to make any observation regarding the legal position in a case where both the Collector as well as the Court in a Reference under Section 18 had made their respective awards before April 30,1982.
Moreover, we find that the judgment appears to proceed on a somewhat unwarranted assumption.
This is clear from the following observations which appear at paragraph 5 of the aforesaid Report (p 217): "It is not in dispute that where on the date of the commencement of the amending Act any proceedings for determination of compensation were pending before the Collector under Sec tion 11 of the Act or before the Court under reference under Section 18 of the Act or before the High Court in appeal under Section 54 of the Act, then the amended section 23 (I A) would be applicable to such proceedings, in absence of subsection (1) of Section 30.
" In our view, it was erroneously taken as undisputed that had the provisions of sub section (1) of Section 30 not been in existence, the provisions of the amended section 23(1 A) would have applied to a case where the Collector as well as the Court had already made their award before April 30, 1982, but an appeal was pending in the High Court on April 30, 1982, or on the commencement of the Land Acquisition (Amendment) Act.
As we have already pointed out, the cor rectness of this as 489 sumption is very much in dispute before us.
In these circum stances, we find ourselves unable to accept as correct the view taken by the Full Bench of the Bombay High Court to the extent that it extends the operation of the provisions of section 23(1 A) even to cases where the Collector as well as the Reference Court had made their awards before April 30, 11982, in the case before the Full Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Government of Goa, Daman and Diu and Another etc., AIR 1987 Bombay 214.
As far as the decision of a Division Bench comprising two learned Judges of this Court in Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama [1990] 1 S.C.C. 277 strongly relied upon by the appellants is concerned, we find that in that case the Land Acquisition Officer made his award determining the compensation on March 5, 1969.
On a reference under Section 18 the Civil Court made its award on May 28, 1985, that is, even after Septem ber 24,1984, when the Amendment Act of 1984 came into ef fect.
The view taken by the Division Bench is that, as the Collector had made his award before April 30, 1982, then the additional amount referred to in section 23 (1 A) could not be awarded.
This view has been taken on the basis that sub section (1)(b) of Section 30 of the said Act provides that the provisions of section 23(1 A) shall be applicable to every acquisition proceeding commenced after April 3 O, 1982, irrespective of the fact whether the Collector has made the award on or before September 24, 1984, and that sub section (1) of Section 30 does not refer to court award and the court award is used only in sub section (2) of Section 30.
(See para 21 of the said report).
We find that on the plain language of section 23(1 A) itself, which we have set out earlier, the duty was cast on the Court to award an additional amount calculated as prescribed therein which would mean that it is directed to be awarded by the court, namely, the Reference Court, in all cases which are pending before that court on September 1,1984.
Sub section (1)(a) of Section 30 undoubtedly lays down that the provi sions of section 23(1 A) of the Act are also made applicable to all proceedings for the acquisition of any land under the said Act pending on April 30, 1982, where no award had been made by the Collector before that date.
At first glance this would appear to suggest that the additional amount referred to in section 23 (1 A) could not be awarded where the Col lector had made his award before April 30, 1982.
But this provision cannot be allowed to cut down the benefits avail able to the claimants on a plain reading of section 23(1 A).
This is clear from the use of the word "also" in the opening pan of section 30(1).
In our opinion, the view taken by the Bench comprising two learned Judges of this Court in that case cannot be accepted as correct as it is too narrow and unduly cuts down the operation of the benefit conferred under the 490 plain language of section 23 (1 A) of the said Act.
As far as the provisions of section 30(2) are concerned, we do not feel that we are called upon to interpret the same in this decision.
In our view, therefore, the said decision cannot be accepted as good law in so far as it lays down that in order to bring the provisions of section 23(1 A) of the said Act into play the Collector must have made his award after April 30, 1982.
Coming to the decision in Union of India and Another vs Raghuvir Singh (dead) by Lrs.
(Supra) referred to earlier, we find that it mainly concerned itself with the provisions of section 30(2) of the said Amendment Act with which we are not directly concerned here and in that connection, the Constitution Bench of this Court has made the following observations (p. 779): "In construing section 30(2), it is just as well to be clear that the award made by the Collector referred to here is the award made by the Collector under Section 11 of the parent Act, and the award made by the Court is the award made by Principal Civil Court of Original Jurisdiction under Section 23 of the parent Act on a reference made to it by the Collector under Section 19 of the parent Act.
There can be no doubt that the benefit of the enhanced solatium is intended by section 30(2) in respect of an award made by the collector between April 30, 1982, and September 24, 1984, Likewise the benefit of the enhanced solatium is extended by section 30(2) to the case of an award made by the Court between April 30, 1982, and September 24, 1984, even though it be upon reference from an award made before April 30, 1982.
" The Court went on to point out that (p.780): "Section 30(2) of the Amendment Act extends the benefit c. the enhanced solatium to cases where the award by the Collector or by the Court is made between April 30, 1982, and September 24, 1984, or to appeals against such awards decided by the High Court and the Supreme Court whether the decisions of the High Court or the Supreme Court are rendered before September 24, 1984, or after that date.
All that is material is that the award (empha sis supplied) by the Collector or by the Court should have been made between April 30, 1982, and September 24, 1984.
We find ourselves in agreement with the conclusion reached by this Court in K. Kamalajammanniavaru vs Special Land Acquisition Officer, and 491 find ourselves unable to agree with the view taken in Bhag Singh vs Union Territory of Chandigarh ; The expanded meaning given to section 30 (2) in the latter case does not, in our opinion, flow reasonably from the language of that sub section.
It seems to us that the learned Judges in that case missed the significance of the word 'such ' in the collocation 'any such award ' in section 30(2).
Due significance must be at tached to that word, and to our mind it must necessarily intended that the appeal to the High Court or the Supreme Court, in which the benefit of the enhanced solatium is to be given, must be confined to an appeal against an award of the Collector or of the Court rendered between April 30, 1982, and September 24, 1984.
" We find that this decision which was rendered by a Constitution Bench of this Court comprising 5 learned Judges runs in no way counter to the view which we have taken and, in fact, it leads some support to the view which we are taking.
In the case before us, as the Reference Court has made its award after September 24, 1984 the benefit of the provisions of section 23(1 A) was clearly available to the claimant as held in the impugned judgment.
In the result, the appeal arising out of Special Leave Petition (Civil) No.14297 of 1990 in Union of India vs Zora Singh must be dismissed with costs.
As far as the other appeals filed by the Union of India which have been heard together with the Zora Singh 's case are concerned, learned Counsel for the Union of India has not drawn our attention to any material difference in the relevant facts therein from the facts in Zora Singh 's case.
In fact, the arguments proceeded on the footing that all the relevant facts were the same as in the case of Zora Singh.
In a result, all these appeals must also be dismissed, however, with no order as to costs.
As far as the appeals before us which have been filed by the claimants are concerned, the same will have to be placed before appropriate Benches of this Court for disposal in the light of this decision.
V.P.R. Appeals dis missed.

summary/full:
The lands of the respondent and other land owners were acquired under the Land Acquisition Act, 1894.
Notifications under sections 4 and 6 of the Act were published on 10.5.1979 and 27.3.1981 respectively.
The respondent and other land owners filed Reference Applications u/s 18 of the Act against the award before the District Judge.
The District Judge classifying the acquired land into various grades awarded compensation and also granted bene fits u/s 23(1 A) of the Act to the respondent and other land Owners.
Hence, the State appealed to the High Court.
Those land owners, who were not satisfied with the compensation awarded and those to whom benefit u/s 23(1 A) were not granted, also appealed to the High Court.
The Single Judge of the High Court confirmed the grant of benefits u/s 23(1 A) of the Act and also granted such benefits to those cases, where such benefits were not given by the District Judge.
The State preferred the Letters Patent Appeals before the Division Bench of the High Court, contending that the respondent and 479 other land owners were not entitled to the benefit of sec tion 23(1 A) of the Act; that the section 23(1 A) was intro duced by the Land Acquisition(Amendment) Act, 1984; that as the Collector had made his award on 31.3.1981 the provisions of section 23(1 A) of the Act was not applicable to the cases of the respondent and other land owners.
The Division Bench of the High Court dismissed the Letters Patent Appeals of the State.
Hence the present appeals by special leave were filed by the State before this Court.
The parties before this Court made the same submissions which were made before the High Court.
Dismissing the appeal, (CA No.4568 of 1991) this Court, HELD: 1.
A perusal of the provisions of sub section(1 A) of section 23 makes it clear that the said sub section deals with substantive rights and it confers a substantive right to claim the additional amount calculated as set out in the said sub section in the circumstances set out therein.
Similarly, sub section(2) of Section 23 also confers a substantive right on the claimant to a higher solatium.
[486 E F] 2.
The provisions of the Act, being substantive in nature, can have only prospective application unless the language in which the provisions are couched, read in the context, shows that the intention of the legislature was to give retrospective effect to them.
The language of sub section(1 A) of section 23 shows that a duty is cast on the court to award an amount calculated as stated therein in addition to the market value of the land acquired for the period commencing from the date of the publication of sec tion 4 of the Notification to the date of the award of the Collector or the date of taking possession, whichever is earlier.
[486 F G] 3.
The expression "award" used in section 23(1 A) suggests that the intention of the legislature was to make the provisions of the said sub section applicable to cases where the Collector had yet to make his award or the Trial Court hearing the Reference under Section 18 of the Land acquisition Act has still to make its award after the coming into force of the said sub section on September 30, 1984.
[486 H 487 A] 480 4.
The expression "award" is to be distinguished from the expression "decree" and hence, it appears that in the absence of any contrary or inconsistent provision in the Act the provisions of subsection(1 A) of section 23 would not come into play where the awards had been made by the Collec tor earlier as well as by the Reference Court but on the date of coming into effect of the said sub section, an appeal from the said award might have been pending in a court.
In that case, the court would not be "awarding" any amount but would be making a "decree" for an amount.
[487 B C] 5.
By reason of the provision of section 30(1)(a) of the Amendment Act of 1984 the provisions of section 23(1 A) of the Act were, by a deeming provision, made also applica ble to every proceeding for the acquisition of land under the Act where the Collector had not made his award by.
April, 30,1982.
On a correct interpretation of the provisions of section 23(1 A) read with section 30(1)(a) of the Amendment Act of 1984, an additional amount calculated in the manner indicated in section 23(1 A) is also payable in those cases where the Collector had not made his award on or before April 30,1982, but the Court might have made its award before September 24,1984.
[487 D E] 6.
The construction that is being given to the provi sions of section 23(1 A) and section 30(1)(a) will, in a sense, limit the benefits strictly conferred by section 30(1)(a) to only those cases, where the Collector as well as the Court have made their respective awards between April 30,1982 and September 24, 1984.
That cannot be helped, as that is the result of the plain grammatical construction of the clear language used in the relevant provisions.
[487 E F] 7.
The Court would not be justified in giving an unduly restricted meaning to the provisions of section 23(1 A) unwarranted by the plain language of the sub section.
[487 F] 8.
Section 23(1 A) refers clearly to the duties of the court.
The court is defined by section 3(d) as the principal court of original jurisdiction, except in the circumstances set out in the said subsection, which would be the court having jurisdiction to decide the reference under section 18 of the Act.
There, is therefore, no warrant to read in the place of the word "Court" in Section 23(1 A) the word "Collector".
Moreover, the decision of such a court deter mining compensation is regarded as an award under the Act.
In the light of the provisions, there is no warrant to give an unduly restricted meaning to section 23(1 A) of the Act.
[487 G 488 A] 481 9.
On the plain language of section 23(1 A) itself, the duty was cast on the court to award an additional amount calculated as prescribed therein which would mean that such amount is directed to be awarded by the court, namely, the Reference court, in all cases which are pending before that court on September 1, 1984.
Sub section (1)(a) of Section 30 lays down that the provisions of section 23(1 A) of the Act are also made applicable to all proceedings for the acquisi tion of any land under the said Act pending on April 30,1982, where no award had been made by the Collector before that date.
At first glance this would appear to suggest that the additional amount referred to in section 23(1 A) could not be awarded where the Collector had made his award before April 30,1982.
But this provision cannot be allowed to cut down the benefits available to the claimants on a plain reading of section 23(t A).
This is clear from the use of the word "also" in the opening part of section 30(1).
[489 E H] 10.
In the present case as the Reference court has made its award after September 24,1984 the benefit of the provi sions of Section 23(1 A) was clearly available to the claim ant.
[491 D] Jaiwant Laxman P.Sardesai etc.
vs Government of Goa, Daman and Diu and Another etc., AIR 1987 Bombay 214(F.B.) and Union of India & Others vs Filip Tiago De Gama of lied era Vasco De Gains, [1990] 1 SCC 277, overruled.
State of Punjab vs Krishan Lal, AIR 1987 Punjab and Haryana 222(F.B.); and Maya Devi and Others vs The Union Territory of Chandigarh, , ap proved.
Union of India and ,Another etc.
vs Raghuvir Singh (dead) by Lrs.
; , ; K. Kamala Jammannia varu vs Special Land Acquisition Officer, [1985] I SCC 582 and Bhag Singh vs Union Territory of Chandigarh, ; , referred to.


judgement:
Contempt Petition Nos.23640/91 & 263/91.
IN Special Leave Petition Nos. 11699, 11700, 11098, 11654, 10190/90 and 429 of 1988.
From the Judgment and Order dated 11.8.1989 of the Patna High Court in C.W.J.C.Nos.
1014, 1013,227,1365 ,red 1363 of 1988.
Prashant Bhushan for the Petitioner, P.D. Sharma for the Respondent.
The Judgment of the Court was delivered by A.S. ANAND, J.
Shorn of details the circumstances giving rise to the filing of these petitions seeking certain direc tions and initiation of contempt proceedings against the respondents are as follows: The petitioners were at the relevant time working as primary school teachers in the State of Bihar.
Services of some of the teachers were terminated.
The orders of termina tion were ' questioned before the High Court of Patna and a Division Bench of that Court vide judgment dated 11.8.1989 accepted the position that the services of the teachers had been terminated on account of improper and illegal recruit ment by the State.
The High Court was, however, of the opinion that the petitioners were not in any way responsible for the improper recruitment.
The Division Bench 418 gave a direction to the State to screen appropriately the cases of the petitioners and to recruit those who satisfy the requirements.
The Division Bench noticed as follows: "On the facts of this case, we observe that persons who are qualified for appointments deserve a consideration and appointment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified.
We, accordingly, direct the respondents to proceed to take up the appointments of the teachers in the Elementary Schools of Santhal Pargana and Deoghar by inviting applications from the petitioners and other persons who have been removed because they were illegally recruited by the District Superintendent of education and selected if they satisfy the eligibility conditions and appoint them.
In doing so the Respondent State must relax the age limit in case of any of the petitioners found to have become over age during the period of service on stipend and removal.
The petitioners and/or any other candidate who may be appointed in the vacancy so created on account of removal of the peti tioners and other persons appointed by the District Superintendent of Education shall however not claim any benefit of the appoint ment illegally given to them by the District Superintendent of Education but shall receive emoluments and other benefits by dint of their selection and appointment in accordance with law.
" The Court also found that the orders served on the petitioners were violative of principles of natural justice.
However, the Court did not quash the orders of termination but directed that in future selections, preference would be given to the petitioners.
The petitioners filed special leave petitions seeking quashing of the termination orders.
In the special leave petitions certain directions came to be issued by this Court on 7.2.1991.
The State of Bihar was directed that it should carry out the selection process for the retention of the services of those teachers who were qualified at the time of their appointment and that such of the teachers who were found qualified were to be taken back in the employment and were to be given full benefit of continued service irrespective of any break in service on account of the termination of the services.
This court also noticed that the direction of the High Court to the State to hold fresh selections and the methodology to be adopted therefor had become final against the State in as much as the State had not called in question the order of the Divi sion Bench and those directions of the 419 High Court did not require interference.
The Court gave three months to the State for completion of the selection process in accordance with the directions of the High Court.
The outside limit during which the process was required to be completed was fixed as 30th June, 1991.
The Court ob served: "In considering the suitability for selection the Rules which were in force at the time the Teachers were recruited should be taken into account and disqualification shall not be imposed on the basis of any altered Rule.
It will also be open to the State to consider the claim of Teachers who came after the altered Rules in terms of the Rules in force.
The bar of age, we reiterate the direction of the High Court, shall not be used against the Teachers for their selection.
Those of the Teachers who have served in the past but there has been a break in service on account of termination shall have the credit of past service both in regard to the payment of salary as also seniority and other service benefits.
" It transpires that consequent upon the order of this Court dated 7.2.1991, the Commissioner cum Secretary, Human Resources Department, Government of Bihar, made an order on 28.6.1991 determining the categories out of the dismissed teachers, who were eligible for reappointment.
The Commis sioner took the view that under the executive directions/regulations only trained teachers were eligible for appointment in both the categories while the untrained teachers, in exceptional circumstances, could be appointed against the reserved categories of Scheduled Castes, Sched uled Tribes, Urdu and Sanskrit only.
In other words, the Commissioner concluded that those untrained teachers who did not belong to any of the aforesaid four categories but belonged to the general category were not eligible for appointment.
Thus, out of the untrained dismissed teachers numbering about two thousand, only about eighty one teach ers, it is alleged, were found to be qualified and their services were retained.
The petitioners allege that the order of the Commissioner is completely contrary to the executive directions and is also in clear contravention of the order of this Court dated 7.2.1991.
Shri Shanti Bhushan, learned Senior Advocate, appearing for the petitioners submitted that the Commissioner had given a completely wrong interpretation to the executive directions/regulations relating to the appointment of pri mary and middle school teachers in the State of Bihar and had deliberately contravened the orders of this Court dated 7.2.1991.
420 Shri B.B. Singh, learned counsel appearing for the State of Bihar, in reply submitted that there had been no contra vention of the order of this Court dated 7.2.1991 and that the Commissioner had placed a correct interpretation on the executive directions/regulations and had construed the judgment of this Court in the light of that interpretation and, therefore, he had committed no contempt.
Learned coun sel submitted that the interpretation placed by the Commis sioner deserved acceptance.
We have gone through the executive directions/regula tions issued in the form of office letters/orders etc.
concerning the working of The Bihar Non Government Primary School (Taking over of control) Ordinance 1976 and, in particular, the directions relating to the "preparation of waitinglist and appointment of teachers" (para 1) and "the qualifications of candidate for appointment and waiting list" (para 2).
The directions, inter alia, provide that while appointing the teachers I.Sc.
trained will be appoint ed on the basis of I.Sc.
trained and only matric with science trained will be appointed on the basis of matric trained.
Where candidates of the aforesaid qualifications are not available in required number, the candidates having qualifications more than those stated above may also be appointed.
The names of the candidates, in each category, will be written yearwise in the following manner: ". first of all matric trained, then I.A, 1.
trained and thereafter graduate trained, on the basis of marks obtained in educational and training courses and their appointments will be made accordingly.
" Sub clause (d) of Para 2, however, provides: "After the names of trained candidates the names of untrained candidates, of each catego ry will be written in sequence of marks ob tained and qualification." Sub Clause (f) of Para 2 reads thus: "Untrained candidates of different educational qualification may be appointed in reserved category under special circumstances when trained candidates are not available." Sub Clause (1) of Para 2 reads as follows: "Untrained candidates having the qualification of matric or more than it may be appointed in the preliminary pay scale Matric untrained (Middle Trained)." 421 A conjoint reading of the executive orders/directions shows that the untrained candidates are also capable of being appointed in each category but only when the trained teachers are not available in the particular category.
The trained teachers in the order of sequence would indeed get preference over the untrained teachers.
The interpretation placed by the Commissioner, there fore, is not correct and if that interpretation is accepted it would efface the very effect of the order of this Court dated 7.2.1991 and defeat the object of that order which was aimed at providing that all the schools must have teachers.
The Court had taken note of the situation that there was an acute shortage of teachers in primary schools of Santhal Parganas of Bihar due to which most of the schools had been closed down and therefore to tide over the situation the directions extracted above, were given.
The Court had reit erated the directions of the High Court that while making fresh selections the bar of age should not be used against the teachers.
The order of the Court applied to untrained teachers for all the categories also.
The Commissioner has made an order which, in our opinion, is not in conformity with the directions given by this Court and the Division Bench of the High Court.
The directions of the Court, in the peculiar facts and circumstances of the case arising out of closure of a number of schools for want of teachers, provid ed inter alia that even the untrained teachers were entitled to be selected and appointed not only in the reserved cate gories but also in the other categories, provided trained teachers are not available and the untrained teachers are otherwise qualified, without putting the bar of age against them.
From the material on record and after hearing learned counsel for the parties, we are not satisfied that it is a case in which it can conclusively be said that the respond ents have wilfully or deliberately or contemptuously flouted or disobeyed the orders of this Court dated 7.2.1991.
It appears to us to be a case of misinterpretation of the executive directions and order of this Court dated 7.2.1991 and is, therefore, not a fit case in which contempt proceed ings need to proceed any further.
We, accordingly, drop the contempt proceedings and discharge the Rule issued against the respondents.
Since the Court has found entitlement of the untrained teachers in all the categories to appointment provided they are otherwise qualified and trained teachers are not avail able, we direct the respondents to properly comply with the orders of this Court dated 7.2.1991 and select and appoint untrained teachers who are otherwise qualified for appoint ment in all categories without putting the condition of training or age bar against 422 them where trained teachers are not available.
The State must conclude the process of fresh selection in the light of the observations made in this order expeditiously and, in any case.
not later than three months from today.
The petitions are disposed of accordingly.
R.P. Petitions dis posed of.

dataset_name: IN-Abs

summary/full:
The Bihar Non Government Primary School (Taking over of Control) Ordinance, 1976 provided by Para 1 and Para 2 that while appointing teachers, I.Sc. trained will be appointed on the basis of I. Sc trained and only Matric with Science trained will be appointed on the basis of Matric trained, and where such candidates were not available the candidates having qualifications more than these would also be appoint ed.
The petitioners were untrained primary school teachers in the State of Bihar.
Later on their services were termi nated.
They filed writ petitions before the High Court which held that their services had been terminated because of improper and illegal recruitment by the State for which they were not responsible, and that the termination orders were violative of principle of natural justice, but did not quash the orders of termination, and directed the State Government to recruit those dismissed teachers who satisfied the re quirements, and to relax the age limit in case of those who meanwhile became overage.
On the special leave petitions filed by the petitioners this Court by its order dated 7.2.1991, directed the State Government to carry out the selection process to take back in the employment the teachers who were found qualified under the Rules in force at the time of 416 their initial appointment, and to give them full benefit of continued service irrespective of any break in service on account of the termination.
In the special circumstances of the case arising out of closure of a number of schools for want of teachers, the Court held that in the event of non availability of trained candidates even untrained candidates could be appointed, and gave time till 30.6.1991 to complete the selection process in accordance with the directions of the High Court.
Consequent there to the Commissioner cum Secretary, Human Resources Department, Government of Bihar made an order determining eligible categories for reappointment out of the dismissed teachers and hold that under the executive directions/regulations only trained teachers were eligible for appointment while untrained teachers, in exceptional circumstance could be appointed against the reserved catego ries of Scheduled Castes, Scheduled Tribes, Urdu and San skrit only, and held that those untrained teachers who did not belong to any of these categories were not eligible for appointment.
The petitioners filed contempt petitions contending that the Commissioner gave a completely wrong interpretation to the relevant executive directions/regulations and had delib erately contravened this Court 's order dated 7.2.1991.
On behalf of the respondents it was contended that the Commis sioner had correctly interpreted the executive orders/regu lations and did not contravenes this court 's order and, therefore, he committed no contempt.
Disposing of the contempt petitions, this Court, HELD: 1.
(1) The directions of the Court provided that even the untrained teachers were entitled to be selected and appointed not only in the reserved categories but also in the other categories, provided trained teachers were not available and the untrained teachers were otherwise quali fied without putting the bar of age against them.
[p.421D E] 1.2 The interpretation placed by the Commissioner, was not correct and if that interpretation be accepted, it would efface the very effect of the order of this Court dated 7.2.1991 and defeat the object of that order which was aimed at providing that all the schools must have teachers.
The Commissioner 's order was not in cOnformity with the direc tions given by this Court and the High Court.
[p. 421 B D] 417 2.
It appears to be a case of misinterpretation of the executive directions and order of this Court dated 7.2.1991 and was, therefore, not a fit case in which contempt pro ceedings need to proceed any further.
It could not conclu sively be said that the respondents wilfully or deliberate ly or contemptuously flouted or disobeyed the orders of this Court dated 7.2.1991.
[p 421 E F] 3.
The respondents should properly comply with the orders of this Court dated 7.2.1991 and select and appoint untrained teachers who are otherwise qualified for appoint ment in all categories without putting the condition of training or age bar against them where trained teachers are not available.
The process of fresh selection must be con cluded expeditiously and, in any case, not later than three months from the date of the order.
[pp 421 G H; 422 A]


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

summary/full:
The position of the Gajendragad estate which had been recognised by the British Government as a saranjam and which had been declared by the Bombay High Court in 1868 to be partible, was re examined in 1891 and Government passed a Resolution in 1891 that "the whole of the Gajendragad estate was a saranjam continuable as hereditary in the fullest sense of the word.
It is continuable to all male legitimate descendants of the holder at the time of the British con quest." In 1932 by another Resolution Government formally resumed the grant and re granted it to the plaintiff who belonged to the first branch of the family of the original grantee with a direction that it should be entered in his sole name in the accounts of the Collector.
The other two branches felt aggrieved and in 1936 Government passed anoth er Resolution which confirmed the Resolution of 1891 and modified the Resolution of 1932, by declaring that the portions of the 403 estate held by the branches shall be entered as de facto shares and that each share shall be continuable hereditarily as if it were a separate saranjam estate.
The plaintiff instituted a suit impleading the representatives of the other two branches as defendants 1 and 2, and the Province of Bombay as the 3rd defendant, alleging that the Resolution of 1936 was ultra vires and praying (A) for a declaration (i) that the defendants 1 and 2 had no right to go behind the Resolution of 1932 under which the plaintiff was recog nised as the sole saranjamdar and that the assignments held by defendants were held by them as mere potgi holders, (ii) that the plaintiff had the sole right to all privileges appertaining to the post of saranjamdar, and (iii) that the Government had no right to change the Resolution of 1932, and (B) for restraining the defendants 1 and 2 from doing any acts in contravention of the aforesaid right of the plaintiff.
Held, (i) that the suit was a suit "against the Crown" and also a suit "relating to lands held as saranjam" within the meaning of sec.
4 of the Bombay Revenue Jurisdiction Act, 1876, and the Civil Courts had no jurisdiction to entertain the suit; (ii) that the plaintiff could not be given even the reliefs claimed against defendants 1 and 2 alone, as the rights claimed against these defendants could not be di vorced from the claim against the Government and considered separately; (iii) in any event if the claim against the Government was to be ignored it can only be on the basis that its orders could not be challenged and if the orders stood, the plaintiff could not succeed because both sides held their respective properties on the basis of those orders.
Basalingappagowda vs Secretary of State (28 Born.
L.R. 651) and Basangauda vs Secretary of State (32 Bom.
L.R. 1370) approved.
Province of Bombay vs Hormusji Maneklal (74 I.A. 03) distinguished.
Held also, that see.
4 of the said Act would apply even if the only relief claimed in the suit against the Govern ment was a declaration.
Dattatreya Viswanath vs Secretary of State for India (I.L.R. disapproved.
Daulatrao vs Government of Bombay approved.