Appeal No 289 of 1961
Appeal by special leave from the judgment and order dated February 6 1959 of the Bombay High Court in Special Civil Appeal No 2647 of 1958
M C Setalvad C K Daphtary Solicitor General of India section B Jathar and R H Dhebar for the appellants
section G Patwardhan and A C Ratnaparkhi for respondent No 1
50 1963
February 13
The judgment of the Court was delivered by SHAH J
With special leave the Collector of South Satara has appeared against the order of the High Court of judicature at Bombay directing him to assess compensation payable to the respondent under section 9 1 of the Bombay Pargana and kulkarni Watans Abolition Act 1950
Laxman Mahadev Deshpande hereinafter called the respondent  was the holder of Paragana Watan land bearing Survey Nos
5032
and 5041 in Mouza Aitwade Taluka Valve District South Satara
Performance of service in respect of the Watan had been commuted under an arrangement made in or about 1864 under a commutation settlement popularly known as Gordon Settlement whereby the holder was on agreeing to pay a fixed sum relieved of the obligation to perform service as a Village Officer
The Legislature of the State of Bombay enacted an Act called the Bombay Paragana and Kulkarni Watans Abolition Act LX of 1950 which abolished all Paragana and Kulkarni Watans
The respondent applied to the Collector of South Satara for an order under section 9 of the Act awarding Rs 10479 2 8 as compensation for extinction of his right in the watan land and of his right to enjoy part of the land revenue
 By his order dated April 29 1957 the Collector rejected the application and the order of the Collector was affirmed by the Bombay Revenue Tribunal in appeal under section 9 4 of the Act
But in petition under article 227 of the Constitution the High Court of Bombay set aside the order of the Collector and directed that officer to assess and pay compensation to the respondent under section 9 1 of the Abolition Act
The land was granted to an ancestor of the respondent as remuneration for performance of Paragana service some time in the sixteenth century 51 by the Ruler of Satara and that grant was confirmed by the British Government
The original grant and the confirmation sanad have not been produced but it is common ground between the parties that the grant was of the soil and not merely of the royal share of revenue
In adjudging the claim made by the respondent for compensation under section 9 of the Bombay Paragana and Kulkarni Watans Abolition Act it is necessary in the first instance to ascertain the true character of the rights of a watandar in the land granted as remuneration for performance of service and the effect of the commutation settlement in the light of the material provisions of the Bombay Hereditary ices Act III of 1874 commonly known as the Watan Act
By section 4 of the Watan Act Watan property  is defined as meaning  moveable or immovable property held acquired or assigned for providing remuneration for the performance of the duty appertaining to an hereditary ice x X Hereditary ice  is defined as meaning every ice held hereditarily for the performance of duties connected with the administration or collection of the public revenue or with the village police or with the settlement of boundaries or other matters of civil administration
The expression includes such ice even where the services originally appertaining to it have ceased to be demanded
The watan property if any and the hereditary ice and the rights and privileges attached to them together constitute the watan and the expression watandar  means a person having an hereditary interest in a watan  it includes a person holding watan property acquired by him before the introduction of the British Government into the locality of the watan or legally acquired subsequent to such introduction and a person holding such property from him by inheritance
Section 15 of the Act provides for commutation of service
By sub section
1 it is provided  The Collector may with the consent of the 52 holder of a watan given in writing relieve him and his heirs and successors in perpetuity of their liability to perform service upon such conditions whether consistent with the provisions of this Act or not as may be agreed upon by the Collector and such holder By sub section
2 which was repealed by Act XVI of 1895 it was provided   Any settlement made for this purpose before the date of this Act coming into force by any Collector or other officer acting on behalf of Government with the holder of any watan shall have the same force as if made under this Act
 Clause 3 provides  Every settlement made or confirmed under this section shall be binding upon both the State Government and the holder of the watan and his heirs and successors
 It is clear that the watan property if any the hereditary ice and the rights and privileges attached thereto together constitute a watan and a hereditary ice does not lose its character merely because the service originally appertaining to the ice has ceased to be demanded
Commutation of service does not therefore in the absence of an express agreement to that effect alter the tenure of the land held as watan
By agreement the State for consideration may agree to relieve the holder of the ice and his successors of the duty to perform the service for performance of which the grant was made but the ice and the grant continue subject to the terms of the settlement under section 15 of the Bombay Hereditary ices Act 1874
In Appaji Bapuji vs Keshav Shamrav 1 the nature of the tenure of land held originally as 1 Bow
53 watanland after commutation of service fell to be determined before the Bombay High Court Sargent C J observed at p 23  What is termed a Gordon Settlement was an arrangement entered into in 1864 by a Committee of which Mr Gordon as Collector was chairman acting on behalf of Government with the vatandars in the Southern Maratha Country by which the Government relieved certain vatandars in perpetuity from liability to perform the services attached to their ices in consideration of a judi  or quit rent charged upon the vatan lands
x x x x x x the reports of Mr Gordon s Committee on the Satara and Poona Districts and their correspondence with Government can we think leave no doubt that the settlements made by that committee unless it was otherwise specially provided by any particular settlement were not intended by either party to these settlements to convert the vatan lands into the private property of the vatandars with the necessary incident of alienability but to leave them attached to the hereditary ices which although freed from the performance of service remained intact as shown by the definition of hereditary ice in the declaratory Act III of 1874
 But the Commutation settlement does not confer an indefeasible title to the grantee for the right affirmed by the settlement under section 15 3 of the Watan Act is liable to be determined by lapse confiscation or resumption section 22 of the Watan Act
The State having created the watan is entitled to put an end to the watan i e to cancel the watan and to resume the grant  Bachharam Datta Patil vs Vishwanath Pundalik Patil 1
Therefore if there be mere commutation of service the watan ice ordinarily 1  54 survives without liability to perform service and on that account the character of watan property still remains attached to the grant
But the State Government may abolish the ice and release the property from its character as watan property
It is in the light of these features of the watan and the property granted for remuneration of the Watandar that the relevant provisions of the Bombay Paragana and Kulkarni Watans Abolition Act have to be considered in adjudging the right to receive compensation claimed by the respondent on abolition of his watan
By section 3 of the Abolition Act it is provided that  With effect from and on the appointed day notwithstanding anything contained in any law usage settlement grant sanad or order 1 all Paragana and Kulkarni watans shall be deemed to have been abolished  2 all rights to hold ice and any liability to render service appertaining to the said watans are hereby extinguished 3 subject to the provisions of section 4 all watan land is hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land  Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of 55 section 5 of the Watan Act or the rights of an alience thereof or any person claiming under or through him 4 all incidents appertaining to the said watans are hereby extinguished
 The material part of section 4 provides that  A watan land resumed under the provisions of this Act shall x x x x be regranted to the holder of the watan to which it appertained on payment of the occupancy price equal to twelve times of the amount of the full assessment of such land x x x x x x and the holder shall be deemed to be an occupant within the meaning of the Code in respect of such land x x x all the provisions of the Code and rules relating to unalienated land shall subject to the provisions of this Act apply to the said land By section 6 right to compensation in lieu of cash allowance or land revenue is granted
It provides  6
Notwithstanding anything contained in any law usage settlement grant sanad or order 1 a sum equal to seven times the amount of the cash allowance due to a holder on the appointed day of a watan in respect of which a commutation settlement has been effected shall be paid to such holder 2 in the case of any land or village in respect of which the watan property consists of the whole or a part of the land revenue of such land or village a sum equal to ten times the 56 amount of such land revenue shall be paid to the holder x x x x x X Section 9 provides for assessment and payment of compensation for the abolition extinction or modification by virtue of section 3 of rights in property not provided for in the Act
Sub section 1 provides  If any person is aggrieved by the provisions of this Act as abolishing extinguishing or modifying any of his rights to or interest in property and if compensation for such abolition extinguishment or modification has not been pro vided for in the provisions of this Act such person may apply to the Collector for compensation
 Sub section 2 prescribes the procedure of an application for compensation and sub section
3 precludes the grant of compensation to any person on the ground that any watan land which was wholly or partially exempt from the payment of land revenue has been under the provisions of the Act subjected to the payment of full assessment
It appears clear from the scheme of section 6 that if the remuneration of the Watandar is merely cash allowance or part or whole of the land revenue of the land compensation at the rate prescribed is payable to the holder on abolition of the watan
If the remuneration consists not of cash allowance or remission of land revenue but of the land itself by the combined operation of sections 33 and 4 the holder of the watan land is entitled to be regranted occupancy rights as in unalienated land
Section 9 deals with the rights of persons to receive compensation for abolition extinguishment or modification of the right or interest in watan property by virtue of the provisions of the Act in cases where no other provision is made in that behalf in the Act
There is 57 no serious dispute raised about this being the true position in law
But two questions remain in controversy between the parties  1 Whether the right to or interest in property of a watandar is abolished extinguished or modified by the provisions of the Bombay Paragana and Kulkarni Watans Abolition Act and 2 Whether provision for compensation for the abolition extinguishment or modification or the right or interest in the watan land of the holder is made by any provision in the Act so as to exclude the operation of section 91 of the Act
The first question presents little difficulty in its solution
Section 3 in terms provides for abolition of the watan extinction of the ice and modification of the right in which the land is held
The abolition extinction and modification arise by the operation of section 3 of the Act  and not from the exercise of the executive power of confiscation or resumption by the State
Undoubtedly the power of resumption of a watan may be exercised under section 22 of the watan Act and such a resumption may destroy the right of the holder both to the ice and the watan land and in the absence of any provision in that behalf no right to compensation may arise
But where the abolition of the watan is not by executive action but by legislative decree its consequences must be sought in the statute which effectuates that abolition
On the second question the respondent affirms the contention which appealed to the High Court that where the grant to a watandar is of the soil and 58 not merely of cash allowance or of remission of land revenue as remuneration for performance of the duties of his ice compensation has to be awarded under section 9 for Act LX of 1950 makes no provision for payment of compensation to the watandar for abolition of his ice and rights in the land held by him
The correctness of this view is challenged by the appellant
It must be remembered that the power which the State Government always possessed by the clearest implication of section 22 of the Bombay Hereditary ices Act 1874 of resumption is statutorily enforced by section 3 in respect of the Paragana and Kulkarni Watans
The State Government having the power to abolish a watan ice and to resume land granted as remuneration for performance of the duties attached to the ice was not obliged to compensate the wandar for extinction of his rights
But the Legislature has as a matter of grace presumably because of settlements between the holders and the Government under the Gordon Settlement provided by section 6 that cash compensation be awarded for loss of the right to cash allowance or remission of land revenue and has by section 4 Conferred upon the holder of the watan land for loss of his right a right to regrant of the land as occupant and free from the obligation imposed by its original tenure as watan land
Provision is also made by section 9 for awarding compensation to persons whose right or interest in property is abolished extinguished or modified by virtue of the section and no other provision for compensation for such extinction abolition or modification is made by the Act
The right to cash compensation under section 9 depends upon the existence of two conditions  the abolition extinction or modification of rights in property by virtue of the provisions of the Act and the absence of any other provision in the Act for compensation in that behalf
If therefore section 4 which provides for conferment of occupancy rights in land be regarded as a provision for compensation for abolition extinction or modification of the 59 right to hold it as watan land the residuary enactment in section 9 will not on the plain terms be attracted
By the operation of section 3 all Paraganas and Kulkarni watans falling within the Act are abolished the right to hold ice is extinguished and the land granted as remuneration for performance of service is resumed
The holder of the land is thereafter liable to pay land revenue and is entitled on payment of the occupancy price at the prescribed rate to be regranted occupancy rights as if it is unalienated land
The right so conferred is though not a right to cash compensation a valuable right of occupancy in the land
By the resumption of watan land and regrant thereof in occupancy right all the restrictions placed upon the holder of watan land are by the provisions of the Watan Act and the terms of the grant statutorily abolished
But the right of occupancy granted by section 4 adequately compensates the holder for loss of the precarious interest of a watandar because the land regranted after abolition of the watan is held subject only to the restrictions imposed by sub section
2 of section 4 and is freed from the incidents of watan tenure such as restriction on alienation beyond the life time of the holder devolution according to the special rule of succession and the liability to confiscation or resumption
In our judgment compensation contemplated to be awarded not as a matter of right but as of grace is not merely money compensation it includes grant of occupancy rights which compensates for the loss of ice and the interest of a watandar in the land
By section 4 the Legislature has granted for the loss suffered by the watandar on abolition of the watan and the rights in watan land a right of occupancy in the land which may properly be regarded as compensating him for the abolition of his rights
Provision for levy of what is substantially a nominal occupancy price will not detract from that character
After the commutation settlement the holder being relieved of the obligation to perform service the ice of wandar survives in name only but the land 60 granted as walan remains subject to the restrictions imposed by the Watan Act
by the regrant of the land in occupancy right on abolition or extinction of the watan the holder is not in truth prejudicially affected
Loss of watan rights in land and the watan ice is compensated by the regrant of occupancy rights in the land
It would therefore be reasonable to infer that the Legislature contemplated the grant of compensation under sub section
2 of section 9 for abolition extinction or modification of rights other than the rights of the watandar to land or to cash allowance or remission of land revenue
The appeal is therefore allowed and the order passed by the High Court set aside
We are informed at the Bar that the respondent has not claimed right of occupancy in the land which was previously held by him as watan land be granted to him
Whether he will be entitled thereto in view of his failure to make a claim to a regrant is a matter on which we express no opinion
Having regard to the circumstances we direct that there will be no order as to costs throughout
Appeal allowed


Summary:
On abolition of his watan the respondent applied to the Collector claiming compensation under section 9 of the Bombay Paragana and Kulkarni Watans Abolition Act 1950 for extinction of his right in the watan land and of his right to enjoy part of the land revenue
 The Collector rejected the application and in appeal the order was affirmed by the Revenue Tribunal
The High Court in a petition under article 227 of the Constitution set aside the order of the Collector and directed him to assess and pay compensation to the respondent under section 9 1 of the Act
Held that the watan property if any the hereditary ice and the rights and privileges attached thereto together 49 constitute a watan and a hereditary ice does not lose its character merely because the service originally appertaining to the ice has ceased to be demanded
Commutation of service does not in the absence of an express agreement to that effect alter the tenure of the land held as watan
By agreement the State may relieve the holder of the ice and his successors of the duty to perform the service for which the grant was madebut the ice and the grant continue subject to the terms of the settlement under section 15 of the Bombay Hereditary Offices Act 1874
Appaji Bapuji vs Keshav Shamrav 1890 1
L R and Bachharam Datta Patil vs Viswanath Pundalik Patil   referred to
Held further that after the commutation settlement the holder being relieved of the obligation to perform service the ice of watandar survives in name only but the land granted as watan remains subject to the restrictions imposed by the Watan Act
By the regrant of the land in occupancy right on abolition or extinction of the watan the holder is not in truth prejudicially affected
Loss of watan rights in land and the watan ice is compensated by the regrant of occupancy rights in the land
Grant of compensation was contemplated under sub section
2 of section 9 of the Bombay Paragana and Kulkarni Watans Abolition Act for abolition extinction or modification of rights other than the rights of a watandar to land or cash allowance or remission of land revenue