GANPATI GOPAL Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) These appeals, with the cross-appeals and the cross-objections, arise out of disputes between certain khots of Kolaba and Government in the same suits which were decided in part by this Court in Ganpati Gopal V/s. Secretary of State, s.c. 26 Bom. L.R. 754. This judgment in the present appeals must be read as a continuation of that judgment, deciding as it does the question left open there for trial, as to the damages due to the khots from Government during the years when the villagea were in Japti by reason of the refusal of the khots to accept a new form of kabulayat containing in part clauses which this Court in that judgment held illegal. We are now concerned with sixty-five appeals by Government in many of which the khots have filed cross-appeals and cross-objections and with two appeals by the khots in one of which Government have filed cross-objections. These appeals are shown in the tables 1 to 6 attached to this judgment. The suits were not consolidated. But the evidence was agreed to be common, and the result is that even in the Paper Book the number of the exhibits can only be described as stupendous even for litigation in India reaching as it does to Exhibits 4060. At the outset we must express our indebtedness to the learned counsel on both sides for the statements which have been of material assistance, and for the arguments which could not have been clearer or more concise.

(2.) The first point taken for Government is that by the resolution No. 1244, dated February 7, 3 914, Exhibit 1926, Government, acting under their powers under Section 38 of Bom. Act I of 1865, fixed the faida payable by the tenants in cash only and not exceeding eight annas per rupee of the assessment. Section 83 of that Act runs as follows : It shall also be competent to such officer (i.e. the Superintendent of Survey or Settlement Officer), with the sanction of the Governor in Council, to fix the demands of the Khot on the tenant at the time of the general survey of a District, and the terms thus fixed shall hold good for the period fpr which the settlement may be sanctioned....

(3.) The time of the survey settlement of this district was 1902, The settlement- officer did not fix the demand of the khot at that time. Nor was any sanction of the Governor in Council obtained, and the order by Government in 1914 even after consulting the Survey Commissioner is clearly not an order under Section 38. That order can only be made at the time of the general survey, that is, 1902. This is still more clear on reading Section 37 and the repealed Section 36. The scheme of Bombay Act I of 1865 was to confer fixity of tenure and, for the period of the survey settlement fixity of assessment, on the occupancy tenants, the latter being subject to the former. The first thirty-six sections now repealed dealt with occupancy tenants in general over the whole Presidency. Then follow Secs.37 and 88. Section 37 refers to the khoti talukas including the one now in question which was then in the Thana Collectorate and authorises the Superintendent or the Survey Officer to grant a lease for the full period of the settlement in place of the annual agreement. Then follows Section 38 authorising that officer with the sanction of Government at the time of the general survey also to fix the demands of the khots on the tenant. He did not fix this demand at the time of the survey in 1902 nor did he obtain the sanction of the Governor-in-Council, and it is not, in my opinion, open to Government by the resolution of 1914 to assume that the Governor-in-Council possessed in 1911 the power which the statute only conferred at the time of the general survey in 1902 upon the survey officer with the sanction of the Governor-in-Council. I am of opinion, therefore, that the Government resolution of 1914 above in question had no statutory force to fix the faida of the khots in cash or at an amount not exceeding fifty per cent, of the assessment.