MOHAMMAD SHOUKAT KHAN Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal by the plaintiff Mohammad Shoukat Khan is directed against the judgment and decree of the Second Additional Judge, City Civil Court, Hyderabad, dismissing the suit of the plaintiff filed against the respondent- defendant, the State of Andhra Pradesh, for a declaration that the abkari rights of the plaintiff in the suit inam lands were not abolished under the Hyderabad Inams Abolition Act, 1955 and therefore, he is entitled to the full income, namely,' Baithak' of sendhi shops (rental or licence fee or right of sale), tree tax and tree-owners' fee (Haque Malekana) and for recovery of the said abkari income from the defendant. The relevant facts in the plaint are to the following effect : the plaintiff is the maktedar of the suit inam lands situate in Sardarnagar and Kurvaguda in Hyderabad District. These inams or maktha lands were originally granted by the Firman of the Nizam to the predecessor-in-interest of the plaintiff. The Atiyat Court granted the inam (muntakhab) i.e., decree Exhibit P-1 in respect of the inam lands of Sardarnagar on 15th August, 1944 with specific Atiyat terms 'Ba-Hama Abwab' (with all sources of income) and 'Bila-Quiyame-e-Haq-e-Sirakar' (without any deduction as Government share) in perpetuity. Similar muntakhab (Exhibit P-2) was granted in favour of the plaintiff by the Atiyat Court in respect of the ' Arazi Maktha' (minor inams) of inam lands of Kurvaguda village. The then competent authorities of the Revenue, Excise and Atiyat Departments admitted and recognised from time to time that the expression "Ba-Hama-Abwab" included the rights of the Maktedar, the plaintiff in respect of distilling of liquor, selling of opium, ganja and sendhi and the right of Baithak or rentals and the collection of sendhi trees income, known as tree tax and tree owners' fee (Haque Malekana) in the maktha land. These rights were recognised and upheld by the Government of Andhra Pradesh, Revenue Department, in G.O. No. 2254, dated 5th December, 1957. The erstwhile Government of Hyderabad by its order (Exhibit P-7) No. 2 dated 22nd Isfandar, 1355-F (22nd January, 1946) acquired the rights of the plaintiff in respect of selling opium, ganja and the rights of distilling liquor by paying yearly compensation,but did not acquire the plaintiff's rights of selling sendhi, (baithak) or collection of tree-tax. Therefore, the plaintiff enjoyed as before these rights which were not acquired. In recognition of these rights, the Government paid'baithak'tree-tax and tree owners' fee till 19th July,1955 and discontinued payment of these amouns, consequent on the abolition of the inams under the Hyderabad Inams Abolition Act VIII of 1955, hereinafter referred to as the Abolition Act. The Abolition Act is not applicable to the inams other than inam lands and inams granted by the Nizam under Firman were not limited to the 'rights in land' and other rights such as 'Rusums' ' weekly bazaar' and abkari rights like ' baithak' and tree- tax were also granted to inamdars. The abkari rights are rights independent of the land and if it was the intention of the Legislature to take over ' Ba-Hama-Abwab' (all. sources of income) which included the abkari rights also it would have expressly mentioned that these rights were also abolished and vested) in the Government as was done in the case of ' mining rights ', ' fishery rights' etc. The compensation under the Inams Act is to be determined only 'in terms of the land revenue' only as provided therein. If it was the intention of the Legislature to take over the abkari rights also, it would have determined the compensation specifically ' in terms of those items also'. Thus, the abkari and other rights which are independent of the land were not abolished under the Inams Abolition Act and ' the rights other than land revenue' were deliberately excluded from the purview of the said Act. This amounts to deprivation of the property of the inamdar under sub-section (3) (a) of section 1 of the Act with effect from the date of the commencement of the Act i.e., 20th July, 1955. In addition to this, by another notification the provisions relating to compensation section 3(2) (g) of the Abolition Act were suspended and although it is more than three years, since the Abolition Act come into force, no notification as provided in sub-section (3) (b) of section 1 has been published to bring into effect the provisions relating to compensation. Therefore, the Act is ' manifestly a fraud on the Constitution of India.' In laying down the principle for payment of compensation under the Abolition Act' only land revenue' was taken into consideration and other items of income of the inamdar referred to in section (3) (2) (b) were not taken into account and as sections 12 to 14 of the Act do not contain any provisions for adequate and fair compensation in respect of the right, the provisions are invalid and ultra vires of the Constitution.

(2.) In the written statement the defendant (respondent) admitted the two ' munta- kabs' granted to the appellant in respect of the suit inam lands by the Atiyat Courts and the rights of the inamdar specified therein relating to "Ba-Hama-Abwab."The abkari rights of ' baithak' tree-tax and tree-owner's fee are also admitted as having been recognised by the Government from time to time, although the interpretation given by the plaintiff regarding the orders of the Government is not adniit- ted. It is the case of the Government that the Government in 1346-F (1946) had taken the management of all jagirs and Makthas and the same was being managed by them and after deducting 1 to 3 per cent, charged through the Abkari department, the rest of the amount was being paid to the Maktedars. The plaintiff's rights, if any, were taken over under the Inams Abolition Act which came into effect on 20th July, 1955 and therefore, the question of the plaintiff having any further rights or claim does not arise. Whatever amounts were found due, were paid upto date of the commencement of the Abolition Act and nothing is due or payable thereafter to the plaintiff. In the rejoinder of the plaintiff, he reiterated his stand that the Abolition Act refers to the abolition of inam lands only and it does not apply to abkari and other rights which are included in the term ' Ba-Hama-Abwab' and if the provisions of the Act are interpreted to include abkari rights, it would be ultra vires as no compensation was provided for for the abolition of abkari rights. On these pleadings, the learned Additional Judge framed as many as ten issues and on the material issues, issues 2 to 5, he held that : "Under sections 3, 2, 4 of the Act, abkari rights are also included so the terms 'Inam' would include these rights also "and that"sections 17 to 20 show the mode of determining total compensation payable in respect of inams so it cannot be said that the aspect of compensation for the Abkari rights is not covered by the Act."and dismissed the suit.

(3.) In this appeal, Mr. Narasaraju, the learned Counsel for the appellant raised two contentions. According to him, on a fair and reasonable construction of the Act, there is no provision in the Act vesting abkari rights of ' baithak' tree-tax and tree- owners' fee in the Government and that section 3 (2) (b) is silent regarding vesting of these rights, and therefore they remained unaffected by the Abolition Act and it is therefore incumbent upon the respondent to render an account of the income derived under this head "abkari rights"and pay such amounts as are ascertained and due to the plaintiff. Amplifying his argument, he pointed out that if section 3 (2) (b) had expressly specified the abkari rights also then it would be a case where the Legislature expressly intended to abolish those rights but when the Legislature did not expressly refer to the abkari rights in section 3 (2) (b) such an intention cannot be implied. It is further argued by him that even if it is to be assumed without conceding that by implication the abkari rights are also included in section 3 (2) (b) as no seprate provision for compensation is made, it would be a case of acquisition without payment of compensation, and outside the legislative competency. It is also pointed out by him that the Hyderabad Abolition of Inams (Amendment) Act, 1956 was given retrospective effect from 20th July, 1955 when the Parent Act, namely, the Abolition Act came into force. By virtue of section 3 of the Inams Abolition {Amendment) Act, 1956, the payment of compensation under section 3 (2) (g) of the parent Act is suspended though the provisions vesting the inams were brought into operation. The Amendment Act is impugned as being unconstitutional in so far as it suspends the operation of the provisions relating to compensation, thereby enabling under the parent Act to abolish inams without payment of compensation. We may therefore examine at the outset the nature and ambit of the inam grants to appreciate the contentions raised by Mr. Narasaraju.