SECY OF STATE Vs. PARASHRAM MADHAVRAO

JUDGEMENT

(1.) In the year 1704 the Maharajah of Satara by sanad confirmed to an ancestor of the plaintiff the right in perpetuity to collect the revenue of two divisions, (viz., Kharepatan and Salshi), each comprising various villages within its boundaries. In regard to Kharepatan the remuneration was fixed at 2 per cent of the Government assessment. In regard to Salshi the percentage was not expressly mentioned in the grant, but the rights in respect of Salshi were treated as in all respects upon the same footing as the rights in respect of Kharepatan. Kharepatan and Salshi are situate in the Talukas of Devgad and Malwan, of the Ratnagiri District. The British Government acquired this territory in 1817 and for many years thereafter the ancestors of the plaintiff and the other hereditary officers were continued in the enjoyment of their offices and emoluments.

(2.) Later on, the Government desired to supersede the hereditary officers, and in or about the year 1865 an offer of a commutation settlement was made by Government, to the Ratnagiri office holders, as a result of which, if accepted, they would cease to discharge the duties of their offices and would receive a reduction in their emolument of 5? annas per rupee. This commutation or non service settlement was enforced compulsorily by a Government resolution (No. 6260) of 16 September 1887, with the result, as regards the plaintiff or his predecessor in title, that he only became entitled to receive 1 rupee 5 annas per cent of the Government assessment. The Government resolution No. 6260, recites that the Government had undoubtedly full authority to enforce the above settlement upon the office holders, and the existence of that authority (however it may have arisen) has not been in dispute in the present action. Later however the Government took further action in the matter, and it is their authority and power in relation to that further action which has been questioned by the plaintiff in these proceedings. What the Government did was to take the average amount paid to the district hereditary officers over a period of five years, 1882-1887, and to fix the resulting amount (less 5? annas per rupee) as an annual sum to be paid, irrespective of what the amount of the Government assessment might be from time to time. In the case of the plaintiff, the fixed annual sum was Rs. 642. There does not appear to have been any formal order of Government substituting these fixed annual sums for the annual percentages, but there were put in evidence two documents which, it was said, operated to effect the change. One is a document (dated 20 April 1889), signed by J. Pollen, acting Collector of Ratnagiri, which runs thus: "Submitted to the Commissioner S. D., for orders. The acting Collector is of opinion that the average of five years' receipts should be taken as the basis for fixing future payments which should be declared permanent and not liable to revision."

(3.) The other is the reply (Ex. D-35) of the Commissioner of the Southern Division (dated 3 July1889), in which he says : "The acting Commissioner S. D., agrees with Doctor Pollen and directs that the average of five years' receipts should be taken as the basis of fixing the future payments of the District Hereditary Officers which should be declared permanent. This course has been followed in other Districts in the Presidency." Doubts were suggested before their Lordships whether this direction of the Commissioner was an act of the Government at all, but there is no doubt that the Government approved and acted upon it, because thence forward payments were, in fact, made upon the five years' footing. Their Lordships must, they think, treat the matter as though the substitution of the fixed annual sum for the percentage payments was an act of the Government. The question however still remains whether such act was within the Government's power.