NOWROJI SORABJI BUNSHAH Vs. SPECIAL LAND ACQUISITION OFFICER

JUDGEMENT

(1.) [His Lordship first dealt with points not material to this report and then proceeded :-] With regard to the apportionment of the compensation in those cases in which the claimants had proved that they were in occupation of hhati lands, in the proportion of one to the Khot and two to the occupant, the Khot claims to be entitled to the whole of the compensation, whether he was in occupation of the lands or not. This is a question which seems to have arisen, and must always necessarily be arising, in Salsette, in cases of compulsory acquisitions, because there have been a number of instances in Salsette where what may be called Khoti grants have been made in old times by Government to various individuals in order to encourage better cultivation in the villages granted, and it has come to be understood that with regard to bhati lands the compensation money should be awarded in the proportion of one to the Khot and two to the occupants. It has been thought on principles of equity that the compensation money should be apportioned in this way, although the occupants may have proved that they had the right to occupy the grass lands and retain the whole of the produce without paying any assessment to the Khot, That being the case, I see no reason why any alteration should be made in the apportionment of compensation in those references in which it has been proved that the lands in reference were bhati lands, and were in the occupation of particular individuals who claimed the rights of occupancy.

(2.) An enormous amount of learning seems to have been devoted to this case on the part of the legal advisers on both sides, as I see that the question how the compensation should be apportioned was argued for twenty days before the Assistant Judge, and I do not know which to admire moat, the patience of the Judge or the ingenuity of the learned Counsel. But it seems to me that a great deal of the time taken up might have been saved if the parties had really considered what was the real issue. Most of the arguments on the issues which were raised by the Assistant Judge appear to me to have been purely academical. There was no necessity to construe Bombay Regulation I of 1808, nor was there any necessity to consider clause by clause the lease to the Khot of the villages of Vikhroli and Kanjur. Whatever rights the Khots acquired under the lease between themselves and Government in 1837 to the waste lands in these villages, even assuming for the purposes of this case that they became absolute proprietors of the soil, that would not prevent other persons acquiring rights against the Khot either permanent or otherwise under the general law.

(3.) I may take the opportunity here of pointing out how a great deal of confusion has arisen in these cases and other similar cases which have come before the Courts by the use of the word "warkas." Evidently the word "warkas" was originally applied to that land in the neighbourhood of rice lands from which the villagers procured from times immemorial rough grass and branches for the purposes of rab burning on the rice fields, and it is admitted that although the villagers or Sutidara in occupation of a particular area of rice land have a right to collect rab materials from the adjacent waste lands, they have no proprietory interest on account of that in the soil, so that in the case of those lands it might well be, if they were compulsorily acquired, the villagers or Sutidars would have no right to any part of the compensation. The case of Vasudev Bhask ar Pendse V/s. The Collector of Thana (1879) P.J. 274 has been referred to as showing that the villagers have no rights whatever in any waste lands, for whatever purpose they are used. But what was decided in that case appears at p. 286:- The general conclusions at which we have arrived are these, viz., that the holders of rice fields in the Konkan, whatever may be their tenure of such fields, are not proprietors of the soil in the warkas lands held by them; and that they Me not entitled either by custom, or prescription, or (so far as appears in the present case), by any grant or recognition on the part of the Government to cut down teak, or other specially reserved trees growing on warkas lands of which they are the oceupants. The plaintiff, therefore, cannot have a decree declaring him entitled to out down such trees.