Bombay High Court
Rama Son Of Dashrath And Ors. vs Nuruddin Son Of Kazi Nasiruddin And Anr. on 24 October, 1986
Equivalent citations: 1988(3)BOMCR513
JUDGMENT M.S. Ratnaparkhi, J.
1. The petitioner No. 1 Rama Dashrath seeks to invoke the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, by issuing a writ of certiorari or some other writ for quashing the order passed by the Deputy Collector, Nanded, on 21-4-1976 in File No. 75. 1. HTA. Clause. 14 and subsequently confirmed by the Additional Commissioner, Aurangabad, in Appeal No. 76/WTN. App. 20 dated 28-2-1979.
2. The facts giving rise to this litigation may be briefly stated as follows:
Survey No. 74 admeasuring 15 acres and 36 gunthas of Nanded was admittedly an inam land. One Nuruddin (senior) was 'the original Inamdar. Bashiruddin, Nuruddin and Karimuddin were the sons of Nuruddin (senior). Nurrudin who is respondent No.1 herein is the son of Nasiruddin (Respondent No.1 Nuruddin hereinafter will be referred to as Nuruddin Junior).
3. It is not much disputed that according to the Muntakhab No. 1247 of 1324 Fasli the whole inam including the suit land devolved jointly on Bashiruddin and Nuruddin Junior and they were recorded as the inam holders. This continued till the coming into force of the Hyderabad Abolition of Inams and Cash Grants Act, 1954, (hereinafter will be referred to as the Hyderabad Inams Abolition Act.)
4. On coming into force of the Hyderabad Inams Abolition Act, all the inams in the Hyderabad area of the State of Maharashtra came to be abolished except (1) inams held by or for the benefit of charitable and religious institutions; and (2) inams held for rendering village service useful to the Government or the village community including sethsendhi, neeradi and balutha inams. All other inams except the above mentioned two categories came to be abolished and they vested in the State Government in pursuance of the provisions of section 3(1) of the Act. Under section 6 of the Act, the land in possession of the inamdar or Kabiz-e-kadim or of a permanent tenant or tenant holding from the inamdar, were made primarily liable to the State Government for payment of land revenue and were declared entitled to all rights and liable to all obligations as occupant in respect of such land. This was in short the scheme of the Act. Carrying out the purposes of the Act, some procedure has been prescribed. Section 2-A of the Act invisages the decision on the points enumerated therein by the State Government or by an officer authorized by the State Government and finality was attached to that decision subject to sub-sections (2), (3) & (4) of the Act. Rules came to be framed under the Act for carrying out the purposes of the Statute . This was the scheme of the Act. It was the case of the present petitioner that on coming into force of the Hyderabad Inams Abolition Act, they come to be recognised as occupants of Survey No. 74. A declaration to the effect was given by the Tahsildar, Nanded, some time in 1961. However, this order passed by the Tahsildar has issued notice to respondent No.1 Nuruddin Junior. Nuruddin did not file any appeal against the decision of the Tahsildar with the Government with the result that the declaration granted by the Tahsildar before the Tahsildar, Nanded, some times in 1965 vide case No. RL/WS.V/Inam 24/65 against the present petitioners. By this application he raised the objection to the declaration granted by the Tahsildar recognizing the present petitioners as occupants. The objections were two-fold; (1) that the declaration came to be granted without notice to him and (2) that the land in dispute was a service inams to which the Hyderabad Inams Abolition Act was not applicable, this land could not vest in the State Government. The Tahsildar reacted these objections. On the first point, it was held that respondent No.1 had notice. On the second point, it was held that the Deputy Collector (Inam) had already held that it was not a service inam. This order came to be passed on 25-4-1966.
5. The order dated 25-4-1966 was not challenged by any appeal. However, it appears that respondent No.1 Nuruddin filed another application before the Deputy Collector, Nanded, vide Case No.1 Inam/6/69. The present petitioners were the opponents in that application. The claim made in that application was for the cancellation of declaration of conferring occupancy rights of inam land Survey No. 74 of Nanded. It was contended that the Tahsildar did not serve any notice on respondent No.1 before making the declaration of occupancy rights in favour of the petitioners . It was also alleged that the petitioners were not the tenants. The so called declaration was thus claimed as void. This application came to be rejected by the learned Deputy Collector on 20-5-1970 holding that the declaration was made after due notice.
6. The order passed by the Tahsildar on 25-4-1966 and the order passed by the Deputy Collector on 20-5-1970 came to be challenged before the Commissioner, Aurangabad by two different appeals. The learned Commissioner by his exhaustive order passed on 6-7-1973 rejected both these appeals.
7. Present respondent No. 1 Nuruddin filed another application before the Deputy Collector, Land Reforms, Nanded, on 1-10-1975 claiming enquiry and decision about the nature of inam land Survey No. 74 admeasuring 15 acres and 36 gunthas. His main contention was that the inam was service inam to which the Hyderabad Inams Abolition Act did not apply and this land never vested in the Government and as such, there was no occasion for conferral of occupancy rights in favour of the present petitioners. The learned Deputy Collector made enquiry and passed the final order on 21-4-1976 holding that Survey No. 7 is the service inam land and as such there could be no conferral of occupancy rights. The conferral of occupancy rights made by the Tahsildar in 1961 came to be cancelled. This order was challenged by the petitioner before the Additional Commissioner, Aurangabad, vide Appeal No. 76 WTN App 20. The learned Additional Commissioner by his order passed on 28-2-1980 upheld the order passed by the Deputy Collector and rejected the appeal. It is this order of the Additional Commissioner which is the subject matter of present writ petition.
8. Mr. Lovekar, learned Advocate for the present petitioners, strenuously urged before us that the declaration of conferring occupancy rights in favour of the petitioners made in 1961 or so has not been challenged either by appeal or by revision or by any other made prescribed by law and therefore, it has become final with the result that no further objection could be entertained by any authority nullifying this declaration. Though apparently the argument seems to have some force, still on scrutiny and examination of the circumstances, the argument becomes unsustainable. It was more or less an admitted position that Survey No. 74 was an inam land though there was a dispute regarding the nature and character of this inam. According to the petitioners, it was an unconditional inam which was covered by the Hyderabad Inams Abolition Act while it was the contention of respondent No.1 that it was the service inam and as such, excluded explicitly from the operation of the Act. It would, therefore, be futile to hold that the nature and character of the inam was not material in this case. It was the most material point to be decided before conferral of occupancy rights. We have already referred to the scheme of section 2-A of the Act and the scheme shows that whenever the points enumerated in sub-section (1) of section 2-A of the Act arise, they shall be decided either by the State Government or by the Officer authorised by it before the case should proceed further. It is an admitted position that for the purposes of section 2-A(1)(i), (ii), (iii), (iv) and (v) the officer authorised by the State Government is the Deputy Collector or the Assistant Collector, whereas, for the purposes of remaining points the officer authorised by the Government is the Tahsildar. The latter covers the question as to whether any person is a kabiz-e-kadim, permanent tenant or tenant. If such question arises, then the Tahsildar is competent to decide this question. On the other hand, if the question arises as to whether any inam is held with or without conditions of service, then that question falls outside the jurisdiction of the Tahsildar and the only competent authority to decide that question is either as Assistant Collector or the Deputy Collector. With this background it will be proper at this stage to proceed further in this matter.
9. Unfortunately, in this case the order passed by the Tahsildar does not find place on record. We, therefore, do not know as to what were the contentions raised by the contesting parties in that litigation. It was urged by Mr. Lovekar, learned Advocate for the petitioners, that the point regarding nature and character of inam was never raised by respondent No.1 Nuruddin in that litigation. We may take it that the point was not raised by present respondent No.1. But what will be the result thereof. Even if this point first because what the Act has abolished is not the inam wholesale but only some kinds of inam. The service inams, as we understand it in common law, were specifically excluded from the operation of this Act. Thus, the law was not made applicable to these kinds of inam, with the result that if the land were a service inam-land there was no vesting as contemplated by section 3(1) of the Act. What is thus apparent in this case is that the nature and character of inam assumed considerable importance before any final order could be passed regarding the declaration of conferring occupancy rights.
10. Thus, when the statute itself makes some points germane to the further enquiry, then it becomes the duty of the authority to decide that point first before taking any final decision in the matter. Present respondent No.1 might or might not have raised that point before the Tahsildar. But omissions on his part to raise this point would not make the property vest in the State Government unless it was the property covered by the provisions of the Act.
11. There is another point to be borne in mind at this stage. It is an admitted position that the occupancy rights came to be conferred by the Tahsildar and by no other authority. The learned Advocate for respondent No. 1 did urge that the character of the inam being important in this case, the Tahsildar had no jurisdiction to decide that point and therefore, his decision and consequential conferral of occupancy rights is without jurisdiction. There appears to be some considerable force in this argument because once having held that the decision on the nature of inam was important, that point could not be decided by the Tahsildar but only either by the Assistant Collector or by the Deputy Collector. If at all there is any decision and declaration of conferral of occupancy rights, it suffers from lack of jurisdiction.
12. We may, however, take it that this point was not raised before the Tahsildar. But one thing is certain that in 1965 or 1966 this point was specifically raised before the Tahsildar and the Tahsildar held that the Deputy collector (Inam) had already given a decision on this point. Unfortunately, this decision does not find place on the record. On the other hand, what has been placed on record is the order passed by the Deputy Collector in respect of other lands except Survey No. 74. Thus, this decision cannot be called as a decision on the point important in this case. Even the learned Additional Commissioner appears to have been mis-guided on this point when he referred to the decision given by the Deputy Collector and when he also observed that this point has already been decided by the Deputy Collector.
13. This is the first round of litigation between the parties. It would be clear from the record that the question regarding nature and character of inam was not raised before the Tahsildar who is allowed to have conferred occupancy rights on the petitioners long back in 1961. This point was raised before the Tahsildar in 1965 or 1966 when he held that this point has already been decided. However, no copy of the judgement is filed. In his application before the Deputy Collector in 1969, no decision on this point specifically has been recorded and the application has been rejected by the learned Deputy Collector on the ground that the matter has already been finally completed. To sum up, in the first round of litigation, the question regarding the nature and character of inam was never agitated nor did the competent authority find that this question was necessary to be decided before the so called conferral of occupancy rights.
14. The Commissioner, Aurangabad Division, did find that this question was necessary to be decided but without answering this question on the basis of evidence produced before him, he simply held that this question was already decided by Deputy Collector by his order passed on 6-7-1973. He has referred to the decision given by the Deputy Collector and the final decision of the Government dated 18th July, 1984. However, that decision is in respect of other lands which are not the subject matter of dispute in this litigation. This can be found at page 53 of the paper book. Conversely it must be said that the occupancy rights came to be conferred without going into the question of nature and character of inam.
15. It is true that after the decision of the learned Commissioner, respondent No.1 did not put any challenge. However, in 1975 he filed another application before the Deputy Collector on 13-10-1975 and the very opening para of Exhibit G shows that respondent No.1 claimed enquiry and decision about the nature of inam land Survey No. 74 admeasuring 15 acres and 36 gunthas of Nanded. This is the first time that the competent authority has applied its mind to the fact in issue and ultimately came to the conclusion that Survey No. 74 was the service inam land and as such the occupancy rights could not be conferred under the Hyderabad Inam Abolition Act. This decision came to be pronounced on 21-4-1976 (Exh. G. herein) and when it was challenged before the learned Commissioner he confirmed the order passed by the Deputy Collector and the order of the Commissioner can be found at Exh. H.
16. This second round of litigation initiated on the application of respondent No.1 has been challenged by the present petitioners mainly on two grounds; (1) that the Deputy Collector had no jurisdiction to enter into and adjudicate upon this controversy on the principle of res-judicata as the matter has already been concluded by the conferral of occupancy rights; and (2) that the learned Deputy Collector as well as the learned Additional Commissioner have committed grave errors of law in deciding this point. In our view, neither of these challenges can be sustainable. As far as the first challenge is concerned, there is no question of res judicata in this litigation because the main question about nature of inam has never been put in issue before the authorities and as such, no decision on this point came to be recorded either by the Tahsildar or by the Deputy Collector or by the Commissioner. As is apparent, the original decision of the Tahsildar is not before us and it cannot be said with any certainty that this point was raised and decided. In fact, the question regarding the nature of inam being covered by section 2-A(1)(i), (ii) and (iii) of the Hyderabad Inams Abolition Act, the competent authority to decide this question was only the Deputy Collector of the Assistant Collector and not the Tahsildar. There is nothing on record to show that those question was decided by the competent authority before the order of conferral of occupancy rights came to be passed in 1961. Another occasion was the filing of the objection be passed in 1961. Another occasion was the filing of the objection petition by respondent No.1 and that too before the Tahsildar in which this point was raised. However, the Tahsildar simply brushed it aside on the ground that this point has already been decided by the Deputy Collector (Inam). This decision does not find place on the record. The order passed by the Deputy Collector in 1970 and the subsequent order passed by the Commissioner in 1973 meet the same fate, inasmuch as, the basis of their order namely; the previous decision of the Deputy Collector on this point remains un-established. Thus, these decisions were not on merits but they were on mis-conception that the point has already been decided.
17. The real point that arises at this stage is whether there can be a bar of res judicata. Under common law, the res judicata can be substantive defence available to party. But the necessary basis has to be established by cogent material. Undisputedly in this case, the decision on the question regarding nature and character of inam was absolutely necessary and that question was not decided on merits by either of the competent authorities. There can at this stage be no defence of res judicata available in the present case. It was urged that there can be a constructive res judicata, in as much as, inspite of full opportunity given to respondent No. 1, the point regarding the nature and character of the inam was never put up by him before the courts during the initial stage of litigation. We are not much impressed even by this submission because, in our opinion, the decision on the nature of inam was a pre-requisite for conferral of occupancy rights irrespective of the fact whether this point has been specifically raised or not. If at all, the inam were covered by the exceptions enumerated in section 2-A(1)(i) and (ii) there could not be any vesting and there could not be any question of conferral of occupancy rights. Therefore, this is not a point to which the rule of Estoppel is applicable. Mr. P.R. Deshmukh, learned Advocate for Respondent No. 1, invited our attention to Mathura Prasad Sarjoo Jaiwal v. Dossibai N.B. Jeejeebhoy, . The principle laid down in that case can be applicable to the present litigation also. In that case an open plot situated at Village Boriwali in Thane District was let out to the appellants forth purposes of constructing building. The appellants constructed the building and then applied before the Civil Court for fixation of standard rent under the Bombay Rent Act. The trial Court held that what was let out was the open land which was not covered by the Bombay Rent Act and therefore, no standard rent could be fixed. In short, according to the trial Court the open plot was not covered by the term 'premises' and therefore, the Court had no jurisdiction to fix the standard rent. This judgment of the Civil Court came to be agitated before the High Court in revision and the revision was dismissed. Subsequent to the dismissal of this revision, the High Court took a view that the open plot let out to a tenant for the purposes of constructing a building, was covered by the term 'premises'. By this time, Boriwali town became the part of Greater Bombay and jurisdiction of Presidency Small Causes Court was extended to Boriwali. The tenant, therefore, filed a suit before the Small Causes Court for fixation of standard rent. The defence was raised that the point of jurisdiction has already been decided by the Court in the previous litigation and therefore, fresh application would lie. The defence thus was of constructive res judicata. The Supreme Court held:
"A question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court. If by an erroneous interpretation of the Statute the Court holds that it has no jurisdiction, the question would in our judgement, not operate as res judicata. Similarly, by an erroneous decision if the Court assumes jurisdiction which the Court does not possess, under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in subsequent litigation is the same or otherwise."
Mr. Deshmukh learned Advocate for respondent No.1 relied on the decision for two grounds: (1) that even assuming that the Tahsildar decided this point in 1961, that decision is without jurisdiction, inasmuch as the Tahsildar was not competent to device the points enumerated under sections 2-A(1)(i), (ii), (iii), (iv) and (v) of the Hyderabad Inam Abolition Act and (2) Even assuming that the Court conferred occupancy rights, it amounts to assuming jurisdiction which was not vested in that Court and therefore, this decision is applicable to the present case. The decision of the Tahsildar cannot operate as res judicata. The second bone of contention was that the point which was necessary to be decided but was not decided cannot be said as finally decided under the principles of constructive res judicata irrespective of the fact whether the party has raised that question or not. The contention of Mr. Deshmukh has considerable force and it has to be held that the decision of Tahsildar cannot operate as res judicata.
18. Our attention was invited to a case reported in Abdul Wahed v. State of Maharashtra and another, . However, the facts of this case are quite different, inasmuch as the case made out by respondent in that case was that the inam was not for his benefit, he being Mutawalli of the Masjid and idgah of Kosmet. No case appears to have been made out that it was inam service. This being the crux of the matter the principle laid down in that case is not applicable to the present case.
19. Another point raised by Mr. Lovekar was that the learned Deputy Collector and the Additional Commissioner were not justified in coming to the conclusion that it was a service inam. Two documents are relied upon, one is the original grant Exh. 1 and the other is regarding succession which was reopened subsequently. The learned Deputy Collector has carefully scrutinised Exhibit. 1 and according to him, it was definitely a service inam. It was the contention of Mr. Lovekar that due weight has not been given to Exhibit B which is the succession certificate and in which it is specifically mentioned that it was a Madad Mash land. Exhibit B being a succession certificate, its limitations are circumscribed by the statute itself, inasmuch as it is merely evidence regarding the succession and not regarding the character of the property. As far as the nature and character of inam is concerned, it would be the grant itself which would furnish the best possible evidence. We do not think that the learned Deputy Collector and the learned Additional Commissioner were in any way wrong in accepting this evidence. This Court, acting within its extra-ordinary jurisdiction, would not normally interfere with the findings of facts and would not enter into the re-appraisal of the evidence. At least it is not he case where the judgement is absolutely perverse or without any evidence.
20. The sum and substance of what has been said so far is that without deciding the crucial question, the occupancy rights have been conferred. The question regarding nature of inam was nowhere touched or decided on merits. The first round of litigation went with this non-decision of a material point. This question came for the first time for decision in 1975 and it has been properly decided. We find no reason to interfere with this order of the learned Deputy Collector and the subsequent order passed by the learned Additional Commissioner confirming the order of the Deputy Collector with the result that this writ petition is dismissed. Rule is discharged. However, in the circumstances of this case, there shall be no order as to costs.