The Collector of Bombay v. Nusserwanjlrattanji Mistri & Others
1955. · Feb~ary 28. The Judgment of the Court
was deli.vered by
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 1313
those lands were settled by . Bombay Act No .. VI of
1851, called the Foras ·Act.' What these rights are,
is a 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
a deed, Exhibit A. On 28-3-1939 the survivor of the
purchasers under Exhibit A 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 a 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
a 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.
1314 SUPREME COURT REPORTS'. [.1955}
Exhibit A withount reserving the . right to assess them,
the purchasers . had the right to hold them without
any liability to pay revenue. He accordingly. granted
a 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 a 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 a right on ·the:· 'part of fhe' siip~rfor
holder · itt • limitation · of the right of · Government, in
consequence· of a . 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 a :·sp~~ifi'~',rigP,C in," ~mita
ti1irt" of"'fhe; 'Tight''' of the' I Goverr,iilient to'' ~;;~ ;the .
. '·.i,1 1 ,~ ~!!_";,_fr~ i;-:-;·;7·•,-111 ?-: 11.-~:1""'l.~ •. -,,r, ~-:,·I•».' '":·!·'
-
' r ,,
S.C.R~ SUPREME COURT REPORTS 1315
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
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 a 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 a 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•
-1955
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 [1955J
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 a 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 a 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 a 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 a 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 a · 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.
' I
-
S.C.R. :SUPREME COURT .REPORTS 1317
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 a 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 a 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 a 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 a 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
(I) 4 Born. H.C.R. I.
'i955
·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 a render called foras, the outline
whereof is delineated in a 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. a 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 1319
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 a 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 a 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 a
right to recover only the assessment which was then
payable, and that there was thus a 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
. lW
1955
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 a limitation on the right of the Government · to
enhance the assessment, as they occur in ' a ' 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 a 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 a 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
t·
S.C.R. SUP.REME COURT REPORTS 1321
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 a public
purpose, and with a 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 a 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.
1 955
The Collector of
Bombay
Nussrrwanji
Rattanji Mistri
and other'
Venkatarama
,dyyar J. ·
1322 STiJP.RiEME CG>GRT REPORTS [1955]
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.
' I-
-.,
. , ...
SUPREME COUKf REPORTS 1323
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 a tax on land is a · 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 a "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 a 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 a 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 a "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.
•955
T ht Coll.tctor of
· Bombay
v.
Nasserwanji.
RattanJi Minri
and others
Venkatatamli
Ayyar J.
1324 SUPREME COURT REPORTS
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 a 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.
' ,
-
) .
S.C.R. SUPREME COURT REPORTS 1325
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 a positive declaration that "all
provisions, restrictions, conditions and limitations
over" shall take effect according to their tenor. Read
ing the enactment as a 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 A 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
1955
The Collector of
(~'.S!:, Bombay
v.
Nusserwanj
Rattanji Mis ri
and others
Venkatarama
Ayyar J.
1955
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 A 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 a 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.
. .'-
' .
• ::f'
' /
;;:·
S.C.R. SUPREME COURT REPORTS 1327
the sale amounted to a 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 a 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 a right to hold the lands free of revenue.
The question then is whether on the terms of
Exhibit A such a 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 a Crown grant,
Exhibit A 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 a subject, as
(!) [1901] I.L.R. 25 Born. 7i4, ;
r. ,.--·
1955
The Collector of
Bombay
v.
N usserwanji
Rattanji Mmri
and others
Venkatarama
Ayyar J.
.1955
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 a rule of substantive
law; and its scope is that whereas the transferee
from a 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 a deed, the
question ultimately reduces itself to a 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 a grant by
the Crown or by the subject. If the words used in a
grant by a 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 a 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 a 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 a grant from the Crown, or from a subject; it is
always a question of intention, to be coller ted from
the language used with reference to the surrounding
circumstances".
Exhibit A 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.
' '
-
/
...
..
S.C.R. SUPREME COURT REPORTS 1329
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 a clause similar to
the above contained in a 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 a 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 a right was granted to the purchaser to hold
the lands free from liability to be assessed, and the
clause in Exhibit A clearly negatives such a 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 A 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.
1955
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 ].
effect of extinguishing the right of the Government
to levy assessment, and that even if Exhibit A con
ferred on the purchasers · no right to hold the land
revenue-free, the assessment which the Government
was entitled to levy under section 8 of Act No. II of
1876 was limited to what was payable under the
Foras Act No. VI of 1851, and that the appellant had
no right . to levy assessment at a rate exceeding the
same. The argument in support of the contention
was that it was an incident of the Foras tenure
under which the lands were held, that the occupants
were· bound to pay only a fixed assessment, that the
incident was annexed to the lands, and was insepar
able therefrom, that between the dates when the
lands were acquired under the Land Acquisition Act
No. VI of 1857 and 22-11-1938 when they were sold
under Exhibit A they continued to retain their
character as F oras lands, that if no assessment was
paid on the lands during that period, it was because
the hand to pay and the hand to receive were the
same, that when they came to the respondents under
Exhibit A, they became impressed with the Foras
tenure, and that, in consequence, they were liable to
be assessed only at the rate payable under Act No. VI
of 1851.
This contention is, in our judgment, wholly untena
ble. When the lands were acquired under the Land
Acquisition Act No. VI of 1857, the entire "estate.
right, title and interest" · subsisting thereon became
extinguished, and the lands vested in the Government
absolutely freed from Foras tenure, arid when they
were sold by the Government under Exhibit A the
purchasers obtained them as freehold and not as
Foras lands. As the tenure under which the lands
were originally held had become extinguished as a
result of the land acquisition proceedings, it was in
capable· of coming back to life, when the lands were
sold under Exhibit A.
In support of the contention that the incidents of
the Foras tenure continued to attach to the lands in
the hands of the respondents, the · learned Attornev
General relied on the following .observations of
"' .
' .
-
. /
+·
-
S.C.R. SUPREME COURT REPORTS 1331
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 a market and for no
other purpose".
But the point for decision there was whether the
Municipal Corporation of Bombay could acquire by
prescription a right to hold the lands rent-free, they
having entered into possession under a 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 a 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.
,-., I •
1955
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
ti.
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 a 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 a serious lacuna in
the proceedings, inasmuch as the framing of a specific and distinct
charge in respect of every distinct head of criminal liability consti·
tuting an offence is the foundation for a 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 a 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
a situation as to whether a retrial should be ordered or not ..
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 139 of 1954.
T
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