NUSSERWANJLRATTANJI MISTRI & Ors. v. Nusserwanji

the . right to assess them, Exhibit A withount reserving 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 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, the land acquisition right of , the Provincial Government proceedings limits prescribed by Act No. VI of 1851 was extinguished,. and that lands were transferred by when the the Central Gov to Lady Pochklianaw; illa and · dthers, they ernment got them as revenue-free result, ·the lands." In appeal was· dismissed. This appeal ·by· special · ·leave· is directed against ·this decision. levy assessment even within th<1t, . further, by reason of · · . · · · The .statutory authority under which· th~ appellant lands. is .. ~ction .. 8 of seeks to 'Jevy assessme11t on_. th,e 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 .. established and · preserved, . 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 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;-:-;·;7·•,-111 ?-:

11.-~:1""'l.~ •. -,,r, ~-:,·I•».' ' .. ~!!_";,_fr~ ". '":·!·' · . '·.i,1 1 ,~ -1955 The Col/~ctor ·oj ._Bombay _v. -Jv usserwanji · Rattanji Mi.rt.ri and others Venkatarama .Ayyar J. r ' ,, S.C.R~ SUPREME COURT REPORTS 1315 land; and the entire controversy in the Courts below was whether - they had right; No contention was raised 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. istablished the definition of In the argument before us, taken by incompetent, as the contention · was sought to be raised -for the first time by the learned that the proceedings Attorney-General Collector under section 8 were section would apply only lands held by superior holders, 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 the Government, tenure 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 therefore outside lands held by the respondents were the operation of section ~8. - 'superior holder' tenures 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, in the City ·-_ of such as whether under the lands_ as superior hold_ers, Bombay, .owners held whether pnCler Indian jurisprudence what was paid by the occupier of land _w.as rent or .revenue, whether the prerogative. right of the Crown 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. In view of ·the fact This objection- must be upheld. 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 to assess .1 ... ·;1_..:.··;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 rights are to be determined tion 8 of the Act. in accordance with sec ) the quantum of assessment, 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 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 the person who pleaded a limitation on the right of the State to assess, It respondents to plead that is, therefore, open to . the onus of making it out lies heavily on them. lands are wholly exempt from revenue; bur to clearly and unequivocally that the burden was .on establish it. the; sale deed, Exhibit A. Taking first "-' .the :issess limitation of lands on India. In · 1661 when · Princess The learned Attorney-General has . sought to estab. lish a right in the respondents in right of the appellant grounds: (l) the Foras Act No. VI of 1851, (2) the land acquistion proceedings under Act No. VI of 1857, and (3) the Foras Act: For a correct appreCiation of its prc> the 'history of the visions, it is necessary to ·refer to lands, · which are dealt with therein. The · Island of the Portuguese Domi Bombay once formed part of Infante Catherine was · married to King Charles II of Eng land, it was ceded by the King of Portugal. to the and by a Royal Charter British Crown as dowry, dated · 27th March 1668 King Charles 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 tidt" .. Vide Shapurji Jivimji v. every day ' on high The .Collector of. Bombay('). It appears 'from War- . den's Report 011 the Landed Tenure• . In. Bombay and 1..e. Mesuri~'s ·Report on that dur'- the Fo~:is lando, ing . the Hlth ~ntury .the East India . Company starte,d (2) [1885) I.L.R. 9 Bom. 483,488. [1937) L.R. 64 I.A. 334. II granted (I) > " "' 'i955 ·The Collector of Bombay v; . Nusserwanji Rattanji Mistri and others Ve'n:katCiramcln Ayjar J. S.C.R. :SUPREME COURT .REPORTS 1317 invited the reclaiming these lands, and first without payment of any cultivate ,them, at assessment and rates. called · "Foras". The meaning These payments were of this word is thus explained by Westropp, J. in his note at page 40 in Naoroji Beramji v. Rogers(1) :- subsequently on inhabitants favourable derived " 'Foras' reclaimed foras was, the salt batty foris a door), that new salt battjr ground and the Portuguese word 'fora', (Latine foras, from signifying It here indicates the rent or revenue derived outside. from outlying lands. The · whole ·island of Bombay fell under that denomination when under Portuguese then a mere outlying dependency of rule, being Bassein. Subsequently · 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 Fort, Native Town, and other the more ancient settled and cultivated grounds in the island, or to · the quit rent arising. from .out lying ground". the sea Thus, 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 the subject of considerable. debate Foras In 1804, the Company resumed some of the Foras lands for sett ling persons displaced resulted in a suit by one Sheik Abdul Ambly, wherein the right of the Company to resume the lands was challenged. The action the Court upholding failed, 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, reports matter further on the subject by Warden in 1814 and Le Mesurier in 1843. And ·finally· the ·Company decided to reeognise the beginning of the 19th Century. investigated, and there were the Town area, and the Company had lands was (I) 4 Born. H.C.R. I. ' I - • 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. Act may now be The 'relevant provisions of \ - the East "Whereas noticed. The preamble· to the Act states that, 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 the said East India· Company in all of the lands included in the said plan,. .. · .... should be extinguished, save . as. hereinafter mentioned. Section 2 enacts tha.t : It· iL enacted as follows :" that the rights of . "From and· -after -the said 1st day of July, rights of the. said Company in all of· the said the said plan No. 1, except those men" mentioned tioned. in the said· plan No. 2, shall be extinguished in favour of the persons who shall then hold the same the immediate rent-payers to the said. respectively-. as 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 lands from , being . liable to· any further general taxes on land in' Bombay ....... "·" exempt 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 the provisions. ··of : the· Act., The •• preamble tion, .ju- (I) [1885] l.L.R. 9 Born. 483, 488. --.-~}-; ·,,,.,---.- -.,,,, ·- . ' S.C.R: SUPREME COURT REPORTS 1319 1955 The Collector of Bombay v. l•tusseru·anji Rattanji Aiistri and others Venkatarama Ayyar J. / 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, 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 The Collector oj Bo111~ay Vo NU!strwanji · Rattilnji · Mistri and others -··-· Venkatartima Ayya' J. 132-0 SUPREME COURT REPORTS [1955] import of they occur the assessment, as 'contended '' for by the scope of which was the Government · to ing a limitation on the right of enhance in ' a ' saving clause, 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 It is true that the S<:tting in which granted to them. these words occur is more appropriate reserving than for declaring rights in favour of the Company the occupants. ·But to adopt · the any in favour of 'the' appellant ' would construction be to render· the words ·''now' severally 'payable"' and "which shall co'ntinue to be payable;" wholly meaning inartistic, less. Notwithstanding that while, on the one hand, the right of the Government it 'is, on· the other to recover the assessment is saved, hand, limited to the amount then · · payable by occupants; The contention of respondents 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 : the drafting the clause unmistakably· is · "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, titles. and interests". The' <:Ontention of' the respondents "which" has favour with the· Courts. below is that under that section the effect of ·the vesting of the 'lands in the Government 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 · · · · " including thereon, rights, · , · · .i.9s_~ Tht Collector ef Bombay v . . . Nusserwanj'i Rattanji Mistri and others v enkataraman Ayyer J. S.C.R. SUP.REME COURT REPORTS 1321 that, that what the claimants · therein, the respondents rely on therefore, the claimants. over rights of the Crown. to assess the lands, as well as the interests of is paid the full value of the lands but to the owners . is not 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 right equally with assess, and the rights of the lands would be extinguished. One pf the awards has been marked as Exhibit J>, · and recitals the claimants was therein that the compensation lands". The award, it "for their interest in the said must be mentioned, directs to pay the claimants the amounts specified therein, but con tains no provision for payment of any sum as com its right to ·assess pensation to the lands; nor does it even value that right. · But the respondents contended the Government being the authority to pay must be deemed to have paid itself, and that, in any event, if they were entitled to it could not affect compensation, their failure to claim the result, which was levy assess ment would be extinguished. the Government for the Government right to We are unable to accept the Government acquires the sum 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 total · of all pose, them. If the Govern· private ment has itself an interest in the land, it has only to acquire the other in a position to pass it on absolutely that it might be In In the Matter of the Land Acquisi for public user. tion Act: The Government of Bombay. v. Esupali Sale bhai(1) Batchelor, J. observed interests outstanding interests subsisting therein, : "In other words Government, as it seems to me, the Act, as held the entire compen- -are not debarred from acquiring and paying for only outstanding which primarily contemplates all outside Government, directs interests merely because interests t· (1) [1909] I.L.R. 34 Born. 618, 636. ' I- -., 1322 STiJP.RiEME CG>GRT REPORTS [1955] 1 955 The Collector of Bombay Nussrrwanji Rattanji Mistri and other' Venkatarama ,dyyar J. · the whole there - stciod · buildings '-belonging' · to sation based ·upon· the· market value· of land, .must be distributed •among. the· dainiants". ,_,,;: • - There,. 'the <;:overnment 'c!ainied ownership 'ofthe'land on whith 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". in ·entire agreement. With these observations, we are When Government possesses an interest in land which is the subject of - acquisition under the Act, that inte itself outside such acquisition, because can be no question of Government acquiring what its own. An investigation into the· nature and· value of that interest will no doubt be necessary for determin ing the compensation payable 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, Government "free from all other estates, titles rights, and interests", which must -clearly mean other those possessed by 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 Gov.ernment · is- directed · to pay compensation 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. the Government. the lands _vest 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. 1955 The Collector of Bombay v. Nusstrwanji Rattanji Mistri ana others Venkatarama Ayyar J. . , ... SUPREME COUKf REPORTS 1323 thi~ ·.assumption to make ·up "ownership". It will include lease, charge, easement . and of Act VI of 1857. But is well~ founded? We think not. In· ·its · normal acceptation, "interest" means one or more of those rights ·. which example, mortgage, 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 to all persons who are in notices should be given terested the Collector land, and apportion the compensa to their interest tion among the claimants according 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 interests cumbrance" in respect of which a compensation was made . under section 11, or It cannot the Government to levy assess include the right of ment on the lands. The Government is not a "per interested" within the definition in section 3(b), and, as already stated, the Act does not contemplate compensation being awarded therefor. in this section can only mean in the land. Under section 11, interest being valued or land". Section 9 requires could have been claimed. to value the 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 that the subject-matter of acquisi 1857 clearly shows tion under lands or its constituept rights and not the right of the Government lating to the issue of notices to, pei;-sons . interested that Act was only ownership over levy assessmeflt. The provisions •955 T ht Coll.tctor of · Bombay v. Nasserwanji. RattanJi Minri and others Venkatatamli Ayyar J. 1324 SUPREME COURT REPORTS substantially· the same. Moreover, under and. the apportionment of compensation among them .section VIII the Government is to take the lands free . from - all other "estates, rights, title and interest", and "in the context, be construed eiusdem terest'; must, in 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 assess the 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. accordingly be held It must lands. recite that where there It does not, however 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';. are to be held revenue-free. But it is argued for the respondents is an absolute sale by the Crown as here, that necessarily imports that the is conveyed revenue-free; and section 3 of 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, 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 tenor, be construed as granting ex according to its emption from revenue. But that will be extending the bounds of section 3 beyond its con- conditions and assessment to (!) {!gO!] I. L. R. 25 Born. 714. ' . --,, >- • 1955 The Collector of (~'.S!:, Bombay v. Nusserwanj Rattanji Mis ri and others Venkatarama Ayyar J. S.C.R. SUPREME COURT REPORTS 1325 restrictions, remove certain doubts tents. The object of the Act as declared m preamble is "as to 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 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, limitations conditions over" shall take effect according to their tenor. Read ing the enactment as a whole, the scope of section 3 conditions and limitations over" which would be bad under the · provisions of the Transfer of Property Act, such as enjoyi; nent conditions limitations repugnant offending the rule against perpetuities and like. But no question arises here as to th.e validity of any provision, 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. to the nature of the alienations or estate, condition, or restraint of "provisions, restrictions, restriction, that it scope of the Act applies It is argued by the learned Attorney-General that this limitation on the 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 settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be with reference to the general context ........ " In this view, section 3 must also be the light of the preamble, and so construed, it cannot, for the reasons already given, have any bearing on construed intended (I) 1946 F. L. J. 88. 10-90 S. C. India/59 ' , - ) . 1326 SUPREME COURT REPORTS [1955] 1955 The Collector of Bombay v • . NUsserwanji Rattanji Mistri and olhers JI enkatarama Ayyar J. restnct1on, restrictions, "all provisions, the rights of the parties. Moreover, that section only enacts conditions and limitations over" ·effect · according to their tenor, and what is relied on is not any provi sion, Exhibit A which according the ab respondents to hold the solute Exhibit A. Therefore, apply. lands rent-free, but conveyed section 3 does not in limitation over, tenor entitles condition or character of interest land held by to the payment of 1-10-1884. By another deed the Mission as taxes, The respondents also relied on certain observations in Dadoba v. Collector of Bombay (1) as supporting their the Govern the facts were contention. There, ment had granted one parcel of to the Free Church Mission of Scotland revenue-free under a deed 20-12-1887 right of reversion on two other they released their tenants but parcels of charges, "subject rates, in respect of assessments leviable or chargeable the time being thereon". said premises or anything for On 16-1-1888 the Mission sold all the three parcels to one Janardan Gopal, and the Secretary of State joined the conveyance for effectually releasing the rever the Government. Before Tanardan Gopal sion of lands, there had been correspondence purchased the between his solicitors and the Government as 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 lawfully do. point for decision was whether he could so. 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 In deciding lands, and (1) [1901] I. L. R. 25 Born. 714. . .'- ' . • ::f' 1955 The Collector of Bombay v. N usserwanji Rattanji Mmri and others Venkatarama Ayyar J. S.C.R. SUPREME COURT REPORTS 1327 the sale amounted in the decision, and observed: assessment. Chandavarkar, to a collateral contract not concurred J., the course of his judgment ' / ;;:· that Government was " .... when we have regard the 'nature of the transaction, viz., selling 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 levied as 9 pies per square yard per annum assessment and no more". to an agreement not These observations have been relied on as supporting the contention that when ther.e is an absolute sale by the Government, it amounts levy more assessment than was payable at that time. But the remarks of the learned Judge have reference the deed dated 20-12-1887 and the to the recitals 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 the correspondence bet teral contract deducible from the Government. Neither the observa section 3 of the Crown Grants Act, nor 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 purchaser and The question It was argued by then is whether on 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. learned Solicitor General for the appellant that being a Crown grant, Exhibit A should be construed in favour of the Crown it was and against the grantee. On the other hand, 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 Bombqy v. Nusserwanji Rattanji Mist;i and others Venkatarama Ayyar J. 1328 SUPREME COURT REPORTS [1955] its scope that whereas 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 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 granted by the deed, and nothing passes by implica tion. But when the grant is embodied in a deed, the to a determination question ultimately 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 they occur in a grant by makes no difference whether 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 pass the same interest when they occur in a Crown grant. Dealing with this question, Sir John Coleridge observed in Lord v. Sydney ( 1 ) two different meanings, reduces itself "But it In so holding their Lordships to say more on this point, because they are clearly of opinion, true construction of this grant, the that upon is ad medium filum, creek where it bounds the land they do not intend included within it. respect to Crown to differ from old authorities grants; but upon a question of the meaning of the words, justice the subject-matter of construc must apply, whether the Crown, or from a subject; it is tion be a grant from always a question of intention, the language used with reference to the surrounding circumstances". the same rules of common sense and to be coller ted : is unnecessary for Exhibit A has to be construed in the lignt of these principles. As already stated, there the deed that the purchasers are entitled to hold the (1) [1859] 12 Moore P.C. 473, 496, 497; 14 E.R. 991, 1000. of assessment On the other hand, is no recital ' ' - / ... .. S.C.R. SUPREME COURT REPORTS 1329 in re.~pect thereof", which that the properties will be subject expressly provides "to the payment of all cesses, rates, assess taxes, ments, dues and duties whatsoever now or hereafter .words to become payable would in their natural and ordinary sense cover In Dadoba v. Collector of Bom present assessment. 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 the effect of this clause on the rights of the cussing the property permanently on an plaintiff to hold J. assessment of 9 pies per sq. yard, Chandavarkar, observed: 1955 The Collector of Bombay v. Nttsserwanji Rattanji Mistri and others Venkatarama Ayyar :J, to the payment of all it neither contradicts nor varies "When that deed says that the property was sold 'subject taxes, rates, charges, assessments leviable or chargeable', it leaves the ques tion open as to what the taxes etc., are which are 'levi is ad able or chargeable'. Extrinsic evidence of that missible, terms of in which the deed, but explains the sense 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 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 they have not established aliunde any right to hold the lands free from assess It must, therefore, be held that far from ex ment. liability empting the lands revenue, Exhibit A expressly subjects to be assessed the respondents, as 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. Nusserwanji Rattatifi Mistri and Others V enkatarama ·· Ayyar ]. ' . - 1330 SUPREME COURT REPORTS [1955] limited the Foras the right of to what was payable under the purchasers · no right the assessment which levy assessment at a rate exceeding in support of incident of effect of extinguishing the Government that even if Exhibit A con to levy assessment, and to hold the land ferred on the Government revenue-free, was entitled to levy under section 8 of Act No. II of 1876 was Foras Act No. VI of 1851, and that the appellant had no right . to the contention same. The argument tenure it was an under which the lands were held, that the occupants that the were· bound to pay only a fixed assessment, incident was annexed to the lands, and was insepar the dates when the Land Acquisition Act lands were acquired under No. VI of 1857 and 22-11-1938 when they were sold under Exhibit A if no assessment was character as F oras lands, it was because paid on the lands during the hand to pay and the hand to receive were same, that when they came to the respondents under Exhibit A, the Foras tenure, and that, in consequence, they were liable to be assessed only at the rate payable under Act No. VI of 1851. continued that period, impressed with that between they became therefrom, retain title and 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. thereon became interest" · subsisting right, extinguished, and the lands vested in the Government absolutely freed from Foras the Government under Exhibit A the were sold by freehold and not as purchasers obtained Foras were originally held had become extinguished as a it was in result of the land acquisition proceedings, the lands were capable· of coming back sold under Exhibit A. them as lands. As the tenure under which tenure, arid when to life, when In support of the contention that the incidents of tenure continued to attach to the lands in the · learned Attornev the Foras the hands of the respondents, relied on General .observations following "' . 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 the obligation to hold the land for the purposes of a market and for no other purpose". . / 1955 The Collector of Bombay v. Nusserwanji Ratlanji Mistri and others Venkatarama Ayyar ]. +· - acquired by there was whether But the point for decision 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 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- the Government that de under the land acquisition proceedings, and pends on the effect of section VUI of Act .VI of 1857. If, as observed in the . above passage, the liability pay assessment was "an integral part or an insever it was also able incident of title", extinguished along with the the occupants under section VIII of Act No. VI of 1857. then surely title of . ment survived after the acquisition by contention of the There ·is another difficulty in the way of accepting 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 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 • '955 The Collector of Bombay v. Nusserwanji Rattanji Mislri and others Venkatarama Ayyar J. 1332 SUPREME COURT REPORTS [1955] the saving clause. by the respondents are not within In the result, 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. it must be held We accordingly allow judgments of the Courts below, and dismiss both the suits instituted by the respondents with costs through- out. the appeal, set aside Appeal allowed. 1955 March I 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· the foundation for a conviction and sentence tuting an offence is 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 -