M.L. Dudhat, J.
1. This appeal and the cross appeal are filed against the judgment and decree dated 23rd June 1993 passed by the learned District Judge, Raigad, Alibag in Land Acquisition Reference No. 184 of 1986. In the said judgment and decree dated 23rd June 1993 given by the learned District Judge, the learned District Judge has disposed of in all 79 Land Acquisition References. Since in all these matters there is a common question of fact and common question of law arise for consideration, we are disposing of these matters by the judgment as in First Appeal No. 455 of 1994 with First Appeal No. 741 of 1994. Ratio of the judgment given by us will be applicable to all other First Appeals and/or Cross Objections.
2. Few facts which are material for the purpose of disposing of these first appeals are as under.
3. Appellant No. 2 State of Maharashtra issued notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the said Act' for the sake of brevity) for the purpose of acquisition of the land bearing Survey No. 205 admeasuring 67 Acres -25 Gunthas -12 Annas, situated at Shiva Taluka, Uran, Dist. Raigad. Respondents-Claimants claimed the ownership of the said lands where they were carrying on salt works known as 'Ghatacha Salt Works'. Notification issued under section 4 of the said Act was published in the Official Gazette on 3rd February 1970. Thereafter on 24th May 1971, Notification under section 6 of the said Act was published. However, on 26th February 1973, the said notification issued under section 6 of the said Act was cancelled and on the same day a fresh notification under section 4 of the said Act was issued declaring the intention of the Government of Maharashtra to acquire all leasehold and other outstanding interests of the persons in the lands of the Central and State Governments. Thereafter on 11th December 1975, appellant No. 2 issued notification under section 6 of the said Act. The claimants filed their ad hoc claims on 25th May 1976. The claimants in the claims claimed ownership of the lands and accordingly valued their claims. On 31st October 1983, notice under sub-sections (3) and (4) of section 9 of the said Act was issued and in pursuance of the said notice, respondents-claimants filed their claims for compensation. On 29th September 1984, Special Land Acquisition Officer, Metro Centre III, Urban, passed an award under section 11 of the said Act. By the said award, the Land Acquisition Officer, declined to grant any compensation to the respondents-claimants on the ground that they were not the owners and that the Union of India i.e. Appellant No. 2 was the owner of the said land. On 5th October 1984, Special Land Acquisition Officer took the possession of the acquired land from the Salt Department of the Union of India. Respondents-claimants filed reference under section 18 of the said act on 12th November 1984. Respondents-claimants in December 1984 also filed Writ Petition No. 4283 of 1984 in this High Court challenging the notifications issued under sections 4 and 6 and also the award passed under section 11 of the said Act. On 5th/6th August 1985, the said writ petition was rejected by the Division Bench of this Court. However, while rejecting the aforesaid writ petition, the High Court observed that the reference under section 18 of the said Act is pending in the Civil Court in which the contentions as raised by the respondents-claimants (who were petitioners in that writ petition) could be effectively gone through and decided by the Civil Court.
4. Against the said decision of the High Court, the respondents-claimants preferred Special Leave Petition before the Supreme Court of India challenging the judgment and order dated 5th /6th August 1985 passed by this High Court. The said Special Leave Petition was dismissed by the Supreme Court of India with the following observations :
'The Special Leave Petitions are dismissed but we may observe that the question whether the petitioners are owners of any right in the property and, if so to what compensation if any, are they entitled are the questions open to the determination in the references preferred by them. The Court disposing of the references will do so without being influenced or fettered by any observations made in these matters ' So far as these observations bear upon the questions to be decided by it.'
5. Thereafter, in the year 1986, Land Acquisition Officer made references to the District Judge under section 18 of the said Act and the said reference was numbered as Land Acquisition Reference No. 184 of 1986. On 25th March 1987, the District Judge at Alibag rejected the application made by the Government of India for joining the Salt Department of the Union of India as a party to the Land Acquisition Reference. On 25th August 1987, Salt Department of the Union of India filed Writ Petition No. 2875 of 1987 wherein a consent order was passed, by which the Union of India was directed to be added as a party to the Land Acquisition Reference. On 9th September 1987, the Union of India through the Salt Department was made a party in the Land Acquisition proceedings. After allowing both the parties to lead the evidence, on 23rd June 1993 the trial Court allowed the reference holding that respondent were the owners of the acquired land and granted compensation to the respondents as owners of the acquired land.
6. Against the aforesaid judgment and decree passed by the trial Court on 28th April, 1984, First Appeal No. 455 of 1984 was filed in this Court by Appellants 1 and 2 in the said appeal, Appellants 1 and 2 also applied for the stay of the execution proceedings initiated by the claimants subject to the condition of deposit of the entire amount within a period of three months. On 26th July 1994, present Appellant No. 3 also filed Civil Application for being joined as party to the First Appeal. On 1st September 1994, the Union of India filed Special Leave Petition No. 14573 of 1994 in the Supreme Court of India challenging the ad-interim ORDER passed by this High Court on the said Civil Application on 28th April 1994 and on 26th October 1994 the Supreme Court of India passed an order suspending the operation of the order dated 28th April 1984 passed by this Court. On 27th July 1995, the Supreme Court of India disposed of the Special Leave Petition by directing the State Government to deposit one-fourth of the compensation amount awarded by the Reference Court within three months and permitted the claimants to withdraw the said amount by furnishing security. The Supreme Court also directed this High Court to dispose of the appeals within a period of four months. By the said order, the Supreme Court also allowed the present Appellant No. 3 to be impleaded as a party appellant in the First Appeal. In pursuance of the said order, Respondent No. 3 was added as Appellant No. 3 in this Cross Appeal and also in all other Appeals and Cross Appeals which are being disposed of by this judgment and order.
7. Before referring to the respective arguments as advanced by either side, we may mention that the trial Court in this case has granted compensation of Rs. 15,000/- per acre together with an additional compensation at the rate of 12 per cent per annum on the adjudicated valuation (market value of the land) from the date of the notification issued under section 4(1) of the said Act till the date of the award under section 11 of the said Act and also granted solatium amount at the rate of 30 per cent on the market price/valuation of the land. The trial Court also granted cost of construction of salt works at the rate of Rs. 5000.00 per acre. Trial Court further ordered to pay interest on the decretal amount at the rate of 9 per cent per annum for the first year from the date of possession and thereafter at the rate of 15 per cent per annum till the realisation of the decretal amount.
8. The aforesaid judgment and decree is challenged by the appellants in this appeal. The appellants contended that respondents-claimants were the owners of the land acquired. It was strenuously contended on behalf of the appellants by the learned Additional Solicitor General Mr. Dada that the respondents-claimants failed to lead any cogent evidence to prove their title and, therefore, in view of section 37 of the Bombay Land Revenue Code, 1879 read with the earlier provisions under the Salt Act, the Union Government is presumed to be the owner of the land acquired and, therefore, the claim as to ownership as advanced by the respondents-claimants ought to have been dismissed by the trial Court. The learned Additional Solicitor General further argued that the trial Court has misinterpreted the provisions of the Salt Manual, more particularly Clause 94 in Chapter VII thereof, wherein the word 'Shilotri' is used for a person who runs Government salt works as well as private salt works. According to him, the trial Court has given emphasis on the use of the expression 'private in Jamin Kharda'. According to him, the word 'private' is obviously used in connection with the Salt Works and not necessary with reference to the land, as the concept of Salt works, as understood in the salt works, which are not solely owned or wholly worked by the Government. Therefore, according to him, the reference is to the salt works but not to the ownership of the land. Therefore, it was submitted that the expression 'private' with reference to salt works used with reference to the land or not shall not be determinative to show that the land is of private ownership. To support the aforesaid contention, the learned Additional Solicitor General also referred to various provisions of the Salt Act and the Salt Manual and the Government Resolutions.
9. The learned Additional Solicitor General further criticised the judgment given by the trial Court wherein the trial Court has given over-emphasis on the entries made in Jamin Kharda. By relying on various authorities, he submitted that entries in the Jamin Kharda can never be the evidence of title and the said entries merely relate to an accountable person in the matter of salt revenue with respect to the Salt Works. It was further strenuously contended by the learned Additional Solicitor General that after 1890 no salt land belonging to the Government could be sold to any private party. Therefore, what was disposed of was merely the right to manufacture the salt which is evident from the provisions in the Salt Manual. Apart from the aforesaid submissions on title, the learned Additional Solicitor General assailed the judgment of the trial Court on the ground that the trial Court has misinterpreted various provisions of the statutes, rules and also the documents, as relied upon by the respondents-claimants.
10. The learned Additional Solicitor General also challenged the finding given by the trial Court on the point of valuation. Firstly, he contended that the respondents-claimants made the valuation of their claim in the year 1971 as well as in the year 1976 and, therefore, the trial Court, in any case, ought not to have granted more compensation than what was claimed by the claimants at the initial stage. It was contended on behalf of the appellants that in view of the fact that the claimants have made full use of the Salt works for eleven years after the notification issued under section 4 of the said Act, the claimants are not entitled to the loss of earnings due to non-renewal of the licence. According to the appellants compensation granted by the State Government under its resolution cannot be relied upon as a comparable instance as in the said instance Government granted an ex gratia price, more particularly in view of the agitations by persons whose land was acquired. It was further pointed out on behalf of the appellants that assuming without admitting and even taking into consideration the compensation awarded by the Government of Maharashtra, the respondents-claimants will be entitled to receive only Rs. 12,000.00 per acre of land excluding solatium amount, while the trial Court granted Rs. 15,000/- per acre towards price of the land and Rs. 5,000/- towards the cost of construction. Appellants contended that the evidence given by Jeevan Kulkarni is not trustworthy, firstly, because he himself admitted in the cross-examination that he had no first-hand information about the details of the valuation given by him, and secondly, he made several contradictory and inconsistent statements in his deposition. In view of this, according to appellants, the evidence given by the said Jeevan Kulkarni ought to have been discarded on the point of valuation of the land and the cost of construction of the Salt Pans.
11. Mr. Kumar, learned Counsel appearing on behalf of the Appellant No. 3 also contended that the trial Court ought to have held that respondent - claimant failed to prove the title and second respondent is the owner of the land acquired. He also contended that the trial Court granted compensation without applying his mind. Mr. Kumar, learned Counsel appearing on behalf of the Port Trust further adopted all the arguments as advanced by learned Additional Solicitor General Mr. Dada.
12. As against these aforesaid arguments Dr. Chandrachud, Mr. Bobde, Mr. Soli Doctor, Mr. Oak and Mr. Gangal contended that in the present case section 37 of the Bombay Land Revenue Code and section 20 of the Maharashtra Land Revenue Code are not applicable at all, in view of the fact that the respondents claimants have proved their title to the land as owners. It was further alternatively contended by respondents claimants that they and their predecessors in title were in possession of the suit land for about 100 to 150 years and therefore on the ground of long lawful possession which they have established also they have proved their title. It was further alternatively contended on behalf of the respondent claimants that in any case even presuming for a while without admitting that respondents claimants were granted possession for manufacture of salt under the statute, in view of the fact that they were granted licence to manufacture salt permanently if they follow the rules and regulations and in view of the fact that they were entitled to transfer the salt pans and also their heirs were entitled to claim the salt pan, they were virtually owners of the land and in view of that they are entitled to claim the compensation as if they are the owners. Lastly it was contended on behalf of the respondents claimants that the respondents has led cogent evidence more particularly in respect of adjoining lands which were acquired by the Government by negotiations at the relevant time by awarding Rs. 30,000/- per acre inclusive of solatium. By taking aforesaid instance into consideration, in that case the Government has granted about Rs. 26,500/- as the cost of the land. It was further contended that the aforesaid cost of the land was granted by the Government on the basis of the notification which was issued under section 4 in the year 1970 while the present lands were acquired in the year 1973 and therefore the Court should also enhance the compensation in view of escalation of price during 3 years from 1970. On the basis of this aforesaid contention it was contended on behalf of the respondents in appeal that they are entitled to receive an amount of Rs. 1 lakh per acre as the cost of the land acquired along with solatium interest. It was further contended on behalf of the respondents claimants that they were also entitled to get the compensation for loss of business which the learned Judge refused and were also entitled to get an amount of Rs. 10,000/- towards the cost of construction of the salt pan in place of Rs. 5,000/- given by the trial Court.
13. We have heard the Counsels at both the sides at length we have gone through the relevant provisions of Salt Act and Land Revenue Code and also cases cited by the either side. We have also gone through the voluminous record and heard arguments at length. The important question to be decided in this appeal is as to whether the respondent claimants are the owners of the land or the Union of India, appellant No. 2 is the owner of the land. More particularly in view of certain provisions of the Land Revenue Code and Salt Act; and secondly what is the amount of compensation to be paid to the respondents claimants as owner and/or occupier.
14. Mr. Dada, learned Additional Solicitor General contended that here in this case even taking into consideration the earlier sale deed produced by the respondents claimants of the year 1881 it is difficult to come to a conclusion relying on the averments in the said sale deed that they are the owners of the suit land, more particularly in view of the provisions of Salt Act. The averments made in the sale deed may also possibly for the said sale of salt pans having interest in the land. In order to submit his arguments Mr. Dada relied on several provisions of the Salt and Bombay Land Revenue Code including historical background. According to our opinion unless and until we go through all these provisions it will be difficult to decide the issue of ownership of the land since the historical background, Salt Regulations, Salt Law and Bombay Land Revenue Code of 1869 pertains to the period from last part of 18th century and portion of 19th century. It is necessary to quote all the relevant provisions in this judgement.
15. The learned Additional Solicitor General Mr. Dada submitted that the assumption of the evidence in different appeals can be with reference to these time frames in regard to the establishment of salt work.
1. Salt work established prior to 28/10/1859;
2. Salt work which was started between 28/10/1859 and promulgation of Bombay Land Revenue Code 1879;
3. Salt works which were started between 1879;
4. Salt [works between 1890 and 1905;
5. Salt works started between 1905 to 1945;
6. Salt works started after 1945.
16. The first time frame is upto passing of the resolution dated 28/10/1859. The second is from the passing of the resolution to the passing of Bombay Land Revenue Code, 1879. The third is from the passing of the Bombay Land Revenue Code till the framing of the rules under the Code and the enactment of the Bombay Salt Act 1890 under which rules were framed in 1890. From 1890 the law remained the same till 1905 when the Land Revenue Rules were amended. There was a further amendment in 1921 which did not make any material difference and this amended rules continued till 1945. From and after 1945 the new time frame may be considered.
HISTORY OF THE LAND LAWS IN THE BOMBAY PRESIDENCY
17. From the legal history it appears that in case of salt pans land belong to Government and any party who asserts any right or claims in derogation of Government rights has to strictly prove the same.
18. The first legislation in this behalf was Regulation No. 1 of 1799. (Which is at page 850 Vol. II).
19. This was a regulation for forming into a regular code all regulations that may be enacted for the internal Government of the British Territories under the Presidency of Bombay: This was passed by the Governor in Council on the 19th November 1799. This regulation prescribes the manner and method by which the rule or order may be passed in respect of the rights and tenures of the proprietors or the cultivators of the soil. Regulation I of 1908 was promulgated specifically with reference to the tenure as also ownership rights in respect of lands in the island of Salsette.
20. Regulation I of 1808 may be studied in various parts. The first part of the Regulation deals with the position and the history prior to 1799. The second part refers to the position between 1799 and 1808 and the third part is prospective from the date of the Regulation i.e. 1808.
21. The history referred to in Regulation of 1808 records inter alia that the island of Salsette was conquered by the Portuguese in 1584 and thereafter parceled out among the European subjects into village allotments at a very small or for quit rent. The regulation records that the produce of the land was rice or chowka or white batty as also khara that is salt or black batty. The regulation records that a description of land property under the name of Shelowtr consists Serrotore lands acquired by the natives by purchase from the Portuguese and another description of Shelocta tenure consists of land gained from the sea by embankment at the expense of individuals who then continued on them in several instances on fixed rent without reference to produce.
22. The regulation records that the lands were subject to grants either from the Mohammedan ruler or the Peshwas or the Portuguese. After the annexation of Salsette by the East India Company somewhere in 1774, the question arose as to whether the property in the salt was vested in the company or in the occupants subject to payment of the toka or a moiety of the crop. Various suggestions have been recorded in the regulations having been made by the functionaries of the East India Company to the Court of the directors. The regulation appears to clearly record that a large area of Government or public khara or batty land existed in 1808. It would appear therefore that in 1808 salt was cultivated both on Government as also on lands purchased by the natives by the Portuguese. This is evident from the following Regulations :
XXXVI (7) pg. 897 of Vol 2
XXXVI (7) :- 'With respect to the public or the Government khara or salt batty ground some part is subject to the modern toka assessment, but the greater proportion continues on the ardhul, the khara of the above mentioned village of Mallowny continues slightly to be rated on the begowny system since for some reason not ascertained the khara part of the other village of bongree notified in clause 5 has not yet been assessed, as Government had sanctioned to the begah rates for that species of cultivation and there are not any thereof in the two other villages of Marwa and Wooten.'
LIX. First :- 'For the purpose of bringing into cultivation the waste lands on the island of Salsette, it has, ever since the year 1783 been customary to accept proposals from individuals to undertake the cultivation of particular spots, upon condition of being, in consideration to the expenses they must incur, exempted from the payment of revenue for sixteen, fifteen, twelve, ten, eight, seven, six, five, four, three and two years, or even one, according to the nature of the soil to be broken up, or embankments and other improvements to be effected.
Second :- 'Of such grants, to the number of about a hundred and fifty, have been passed, and those of the earlier years are now in the payment of their assessed rental, whilst of others the period of exemption has not yet expired, but all are making progress, six instances excepted where the ground has been thrown back on Government.'
Third :- 'The chowka or while batty part of this new cultivation is assessed according to the reduced dempt system; and the khara or salt batty grounds thus brought into a state of tillage, is so in conformity to the begowny or begah rates, adverted to in clause thirteenth, section XXXVI.
Fourth. :- 'Khara cultivation of the description in Clause third is classed under the head of Shelocta or serrotore.'
Duty of Khar Patells (Salt Batta Grounds)
Seventh. 1st. every spring, it is the duty of a khar Patell to watch night and day upon the banks of the salt batty grounds belonging to the Sircar, and to report if the water has broken the embankments in any part.
2nd. It is his business to look after the Coorumbees of the Salt batty grounds, and to make them cultivate their lands at the proper period.
3rd. In the rainy season, should the banks of the salt batty grounds belonging to the Honourable Company to be broken or damaged, it is high duty to collect all the people of the village to repair the same without loss of time.'
Duty of the Salt Pan PatellsEight. 1st. In every spring, it is the duty of a Patell to watch night and day upon the banks of the salt pans belonging to the Honourable Company and to take care of their salt.'
The Regulation of 1808 made one statutory provision; this was that the Governor General in Council was agreeable to make the occupants of the soil proprietors of the soil they occupied under a moderate and fixed rent payable to the Government. Formal grants of the property were issued through the Collector under the seal of the company and the signature of the Secretary to the Government. This is evident from the following :-
XXXX II 42 pg. 883
XXXX III 43 pg. 883
XXXX IV 44 pg. 884 & 885.
XLII. 'Under date the 18th of July 1801, the Collector reported his having given the most public notice of the rates thus fixed for the receipt in money of the batty revenues for ten years, transmitting at the same time drafts of the deeds of property to be interchanged with all possessors of batty ground paying revenue or quit rent, and a list of those occupants of the soil to whom those deeds should be applicable, to the number altogether of ten thousand four hundred and sixty-nine, of whom thirty six were distinguished as immediately desirous of availing themselves of the grants in question.'
XLIII. 'The form of these deeds having been approved by Government, were, under date the 7th of August 1801, returned to the Collector, with correspondent version into the Portuguese and Marhatta languages, and copies of the undermentioned proclamation were to be separately disseminated by the Judge and Collector, under date the 10th of the same month for the general information of the inhabitants.'
'PROCLAMATION - First. The Governor in Council is pleased to make known, for the particular information of the inhabitants of Salsette, that 'in pursuance of his determination, communicated to them on the 12th of 'June last, to ameliorate their situations, by rendering them perpetual 'proprietors of the soil they now occupy, under a very moderate and fixed' rent payable to the Government, formal grants of the property in question' will be issued through the Collector, under the seal of the company and 'signature of the Secretary to Government, to such present occupants of ' the soil on Salsette as may be desirous, and shall, in consequence, make 'application to the Collector on the spot, or to the Government at Bombay' to obtain them.
'Second. The deeds of property above alluded to will, for the great' convenience and better understanding of the inhabitants to whom the 'may be issued, be printed in separate columns of English, Portuguese 'and Marhatta, or Guzerattee.
' Third-Each deed will contain the following stipulations, viz., '1st. A fixed and permanent proprietary right in the soil, with liberty' of selling, mortgaging and bequeathing to the full extent of not clean in statue and subject only to a fixed revenue payable to Government.
'Secondly, The Revenue payable to Government will be fixed agreeably to the late dempt' settlement, and the amount will be specified in each deed. 'The grain assessment (constituting the criterion of the amount of revenue derivable to Government from each Landholder) to be paid either in money or kind and in such proportions of either as may best suit the convenience of the inhabitants. If any part or the whole be paid in money, it will, from Margser (October) to the end of the next ten years, be received at the following rates :
'For white batty, at the rate of twenty rupees per morah.
'For black ditto....... ditto...... sixteen ditto. '
3rdly. The amount of grain assessment specified in each deed of property will be considered invariable to the present possessors and their posterity, and is never to be changed or enchanced, whatever may be the quantity, description, or value of the produce of the soil, the increase or augmentation of the value of which will therefore be the unencumbered reward of the industry and good management of each proprietor.
4thly. The Governor in Council trusts that terms so well calculated to promote the interests and happiness of the inhabitants of Salsette will be received with satisfaction by all those who are the objects of the benefits they are intended to produce, and that the good effects of these salutary Regulations will soon be manifest, in a progressive addition to the wealth and prosperity of that island, which has long been and must even continue an object of his especial care and attention.
XLIV : 'First. The following is the form of the deed of property referred to in the preceding proclamation, as taken from the draft of one in the district of Bandorah.
The Honourable the Governor in Council of Bombay doth grant in perpetual and full property unto A.B., his certain heirs, executors, administrators, and assigns, a pot of batty fields, measuring together one and three quarters of bega, two ponds, three and a quarter sticks, near to the village of Bandarvarah, situated in the district of Bandorah, within the limits hereupon endorsed, and rated to produce annually, in conformity to the understated schedule, founded on the ancient usage and computation, one morah, seven parahs, nine adowlies, and two seers of batty on the following terms, viz.
That the said A.B. shall pay in kind to the Collector, or other public officer appointed by Government, ten parahs, sixteen adowlies, and three seers of batty, being the computed one-third of the above-rated gross produce of the soil, between the first of the month of Margser, answering to October, and the middle of the month of Phagoon, or March; which payment in kind, or such part thereof as may be optionally tendered by the said A.B. the Honourable the Governor in council has been pleased to order.'
The Regulation of 1808 records that after 1801 when deeds were introduced as evidence of the grants of rights to occupants, various persons some of whom are named in the Regulation, accepted the deeds. Thus it would appear that lands which were used for manufacture of salt prior to 1808 and even thereafter would be covered by a deed or document indicating the nature of the right held by the occupant with reference to the land.
By Regulation IX of 1827 the requirement of having a register of title deeds was introduced. The relevant portion of this regulation reads as follows :-
A. 'REGULATION for establishing a Register of title deeds, and a General Register of deeds, obligations, and other writings, in each Zilla subordinate to the Presidency of Bombay - PASSED by the Governor in Council on the 1st January 1827, corresponding with the 4th Poush Sood Sumbat or Vikramajet Era 1883, Salbahan 1748 and 2nd Jymmadyool Akhir 1242 of the Hijree.
WHEREAS it would be conducive to the security of titles to immoveable property, and greatly facilitate the transfer of such property by sale, gift, mortgage, or otherwise, that a Register of title deeds should be established in each Zilla, and that deeds entered therein should be allowed such a preference as to give the holder an obvious interest in presenting them for registration. And whereas by establishing also a general register in each Zilla, for all other deeds, obligations, and writings of whatever nature, effectual means would be provided for the preservation of copies of writings, and great facility afforded in proving their contents in the event of the originals being lost or destroyed, the following rules are therefore enacted to take effect from such date as shall be prescribed in a Regulation, to be hereafter passed for that purpose.
Clause 9th - the certificate, so endorsed and signed, shall be held in all Courts of Justice to be sufficient evidence of the registry.
CHAPTER III of 1827
THE EFFECT OF REGISTRATION IN THE REGISTER OF TITLE DEEDS AND SPECIAL PROVISIONS IN FAVOUR OF ANCIENT DOCUMENTS; AND OF THE GRANT OF COPIES OF REGISTERED DEEDS.
Section VI- Clause 1st -Every deed or other writing, transferring or mortgaging immoveable property, situated within the Zilla, if registered in the Register of title deeds shall, without regard to the date of execution, if proved to be valid, be preferred to, and satisfied before any deed of the nature of those specified in section III. Clause 1st, either subsequently registered or not registered at all; but this preference shall extend only to the immoveable property thereby transferred or mortgaged; provided however, that if any person shall purchase, receive in gift, or take in mortgage immoveable property, knowing such property to have been previously sold, given or mortgage, has not been registered, and shall register his own deed, in such case the registered deed shall not, from the registry of it, be entitled to preference over the unregistered deed, if proved to be authentic.
Clause 2nd - Deeds or other writings, transferring or mortgaging immoveable property, if not registered in the register of title deeds, shall not, on that account, be invalidated or null; but shall stand, in regard to each other, unaffected by the rules relating to registration.
'Section VIII - The Registrar of the deeds shall be open to the inspection of all to apply to the Superintendent or to the person in the office acting under his authority and copies of all writing in the Registrar may be taken by such as required them or authenticities copies be procured from the Superintendent provided the fee respectively prescribed in Appendix B be previously paid.'Regulation XVII of 1827 may now be analysed.
This Regulation provided for the recognition of some rights of the Government as also occupants of land. The relevant portion of this Regulation are as follows :
Chapter I : Section II
Section III, Section IV, Section V, Section VII, Section VIII,
Chapter IX : Sections XXXV, XXXVII, XXXVIII
Appendix A : giving the chronology :
CHAPTER I
SECTION II- Clause 1st - All land, whether applied to agricultural or other purposes, shall be liable to the payment of land revenue to Government according to the established principles which govern the assessment of that description of land to which it belongs, except such as may be proved to be either wholly or partially exempt from the payment of land revenue under any of the provisions contained in Chapters IX and X of this Regulation :
Clause 2nd - Provided, however, that nothing contained in the preceding clause or in the enactments therein cited, shall be understood to affect the right of Government to assess to the public revenue all lands under whatever title they may be held, whenever and so long as the exigencies of the State may render such assessment necessary.
SECTION III Clause 1st - The settlement of the assessment shall be made with the occupant of the land, the cultivator, when the land is held direct by him from Government, is to be considered the occupant; and when it is not so held, the person having the highest right, or holding recognised by the customs of the country, or resting on specific grant, which intervenes between the Government and the cultivator, is to be so considered.
Clause 2nd:- If the occupant being a superior holder is absent and has left no authorised agent, so that the settlement of the assessment cannot be concluded with him such settlement may be made with the person holding directly under him.
SECTION - IV- Clause 1st - When there is no right on the part of the occupant in limitation of the right of Government to assess the assessment shall be fixed at the discretion of the Collector subject to the control of the Government.
Clause 2nd- When there is a right on the part of the occupant in limitation of the right of Government, in consequence of a specific limit to assessment having been established and preserved the assessment shall not exceed such specific limit :
Clause 3rd-- Nothing contained in the last preceding clause shall be understood to affect the right of Government to institute by Regulation at any time when it may appear expedient new and specified ruled regarding assessment.
Clause 4th - When a larger revenue, under the name of vieta or other local denomination, is under former practice assessable portion of land, than according to general rules, such land would otherwise pay, in consideration of other land enjoyed with it and not directly assessed below its value, such excess of assessment shall be placed upon the land which is enjoyed without being assessed, or which is assessed below its value.
SECTION VI - Clause 1st - The occupant shall be liable in his person and property, according to the Regulations for the revenue of his land.
Clause 2nd - If the occupant, being a superior holder, shall not discharge the revenue due by him, it may be realised from the inferior holder, but such inferior holder shall receive credit for all payments to his superior holder and not made anticipation of the usual kists.
Clause 3rd -In all cases the revenue of the year, if otherwise discharged, shall be recoverable in preference to other claims, from the crop of the land assessed.
SECTION VII-Clause 1st - Uncultivated land not exempt from, assessment, may be disposed of with the Collector sanction, for the benefit of the revenue.
Clause 2nd- Provided, however, that such disposal shall not in any way affect the claim to preference, the right of occupation, or any other rights which individuals may have other such land, as the same may, when contested, be established in a Court of Justice.
SECTION VIII Clause 1st - Nothing contained in any of the preceding sectionsshall be understood to affect in any way the peculiarities of the tenure of shareholders of villages settling hereditarily and by right for the revenues of their villages in the gross, and thus possessing in some measure a proprietary right in the land of their villages: the said peculiarities shall be respected and preserved, whether they relate to the occupancy, disposal and assessment of the lands of the village, the collection of the revenue, and the joint liability of the shareholders, or to the intermediate steps prescribed by the terms of the tenure, and by the terms of the tenure, and by local usage for the purpose of realising the revenue, in case of non-payment, without destroying the tenure.
Clause 2nd -Provided, however, that the land and its crop shall in these villages, as well as in others, be held to be ultimately liable for the revenue and that when the shareholders fail to pay such revenue and the intermediate steps in such cases prescribed by the tenure and local usage have been found inefficient, it shall be component to the Collector to manage the said villages in the same way as others, and the lands of any such village shall then revert to the Government unaffected by the acts of the shareholders; or any of them, so far as the public revenue is concerned, but without prejudice, in other respects to the rights of individuals.
CHAPTER IX
EXEMPTION OF TITLES FROM THE PAYMENT OF LAND REVENUE.
SECTION XXXV - 1st - Whenever land is enjoyed, either wholly or partially exempt from the payment of public revenue, under a deed or other writing granted by the present or any former Government, or by any of their public officers possessing authority to grant the same such deed or writing shall remain valid, and be considered as a sufficient title of exemption.
Clause 2nd -When land has been enjoyed but not under a deed or writing, wholly or partially exempt from the payment of public revenue, for more than sixty (60) years in succession by any person, his heirs or other deriving right from him, such enjoyment, provided it has been, under some tenure recognised by the custom of the country in which the land is situated, and more particularly under any of those specified in Appendix A, shall be considered as a sufficient title to exemption, provided however that vechama and geranial shall in no case, so far as the rights of Government are concerned be considered as tenures recognised by the custom of the country for the purpose of this clause.
Clause 3rd -But enjoyment of such exemption for twelve (12) years antecedent to the date when the territory in which the land is situated came into the possession of the British Government shall be considered as equivalent to enjoyment for 60 years as specified in a preceding clause.
Clause 4th- But such deed or writing or such enjoyment under a recognised tenure, shall not be considered a sufficient title, in so far as the exemption has been wholly or partially annulled by an order issued by the present or any former Government, or by any public officer possessed under a former Government, of full and sufficient authority to grant deeds exempting lands from the payment of public revenue to grant deeds exempting lands from the payment of public revenue or so far as the land has been assessed under an order not subsequently recalled issued by any of the said public officers, and such assessment has been realised;
Clause 5th - Nor shall such deed or writing, or such enjoyment under a recognised tenure, be considered as a sufficient title if the land has been subsequently assessed for the period of (12) years, like other land of the same description enjoying no exemption, and the assessment has been realised, but without prejudice to any suit filed in support of the title of exemption, before the completion of the said period.
Clause 6th - And where the assessment so levied for twelve (12) years, has not been to the extent of that imposed on land of the same description, enjoying no exemption, such assessment shall affect the title only to the extent of the assessment so made and realised.
SECTION XXXVI- Clause 1st- Whenever land has been enjoyed without payment of public revenue, for more than sixty (60) years, in succession, by any person, his heirs or others deriving right from him, such enjoyment shall be considered as sufficient title of the exemption.
Clause 2nd - Provided however, that land enjoyed as specified in the preceding clause shall be liable to assessment, so far as it may have been subsequently assessed under an order not expressly recalled, issued by the present or any former Government, or by any public officer possessed under a former Government of full and sufficient authority to grant deeds exempting land from the payment of public revenue, and such assessment has been realised or so far as the land subsequent to such enjoyment for more than sixty (60) years, may have been assessed for the period of six (6) years, and the assessment been realised, but without prejudice to any suit filed in support of the title, before the completion of the said period of six (6) years;
SECTION XXXVII - Clause Ist - But whenever the title to hold any land exempt wholly or in part from the payment of public revenue, shall have been clearly recognised by the present or any former Government, or by any public officer possessed under a former Government of full and sufficient authority to grant deeds exempting land from the payment of public revenue, such recognition, and be in so far admitted as a sufficient title to the exemption.
SECTION XXXVIII-Clause 1st - Land held exempt as Jagheer, shall be liable to resumption and assessment under the general rules at the pleasure of Government when signified by order to the Collector, provided that such resumption or assessment shall not commence until after the incumbent shall have been served, in the manner specified in Clauses 3.1, 1st and 5th of section XI, with a notice according to the form contained in Appendix B, accompanied by a copy of the order for resumption of assessment.
APPENDIX A - CUSTOMERY TENURE BY GRANT
List of tenures that may be considered as tenures recognised by the custom of the country under section XXXV Clause 2nd of this Regulation.
Wanta, Koodkhasta,
Grass, Ceoleeyapa,
Wuttun, Barria,
Pussaeta, Meeras,
Waola, Izafut
Raonia Dewusthan
Puggia,
Regulation XVII of 1827 records inter alia that by section II of the Regulation of 1814 provisions were enacted to record and register rights of exemption from land revenue in regard to various lands. A register of exempted land was required to be kept in each Zilla. Thus it would appear that as early as 1814 public records were required to be maintained of the nature and character of the rights of occupants vis-a-vis the land.
SECTION XXXVII - Clause 1st - But whenever the title to hold any land exempt wholly or in part from the payment of public revenue, shall have been clearly recognised by the present or any former Government, or by any public officer possessed under a former Government of full and sufficient authority to grant deeds exempting land from the payment of public revenue, such recognition shall be understood to have cured all defects to the extent of such recognition, and be in so far admitted as a sufficient title of exemption.
The next legislation is Act 1 of 1865. The relevant portions of this Act are as follows:-
Section XLII - Clause 1 - An occupant may relinquish his occupancy in whole or in part, provided the land so relinquished, comprise, whole fields or recognised share of fields and provided that he shall on or before 31st March of the current year due a written notice of such relinquishment to the local native revenue officer of the Revenue Division of the district in which the land of such occupancy is situated. In default he shall be liable for the revenue due therefrom for the following revenue year.
Clause 2- Provided that in village held on the Nurwa and Bhagdaree or other similar tenure, the above clause shall not relieve any shareholder from his liability for the assessment of all lands for which he may be, according to the custom of the village responsible jointly with the other shares.
This indicates that even in the 1865 Act which was a precursor to the passing of the Land Revenue Code, records by way of grants sanads kowls or other evidentiary documents were available with diverse occupants to show the nature and character of their rights in respect of the lands.
Act I of 1865 also provides :-
II(d) 'Alienated village' is a village, held and managed by private individuals, exempt from payment of land revenue, or under Act II or VII or 1863 of the Council of the Governor of Bombay, or under a grant or lease fixing the Government demand in perpetuity.
II(f) 'Estate' means any land or interest in land, wherever situated, vested in any person or body of persons, and separately recognised in the public accounts.
II(j) 'Occupant' is the person whose name is entered authorisedly in the survey papers, or other public accounts, as responsible to Government for payment of the assessment due upon any field, or recognised share of a field.
II(k) 'Superior Holder' is the person having the highest right under Government recognised by the custom of the country, or arising on specific grant, to hold land or engage with Government for the land revenue due on account of any village or estate.
II(1) 'Tenant' is the person holding under an occupant or superior holder, by a right derived from him, and otherwise than by ownership or inheritance.
XII. It shall be the duty of every owner or occupant of land, whether subject to the payment of land revenue or not, to point out to the Survey Officer, at the time of measurement and of classification, the boundaries of his holding. If the owner or occupant, or his duty constituted agent, fail to do so, it shall be competent to the Survey Officer, in the absence of the said owner, Occupant or agent, to fix the boundary on such other evidence as may be available.
XIV. Clause 1st. In conducting an inquiry respecting boundaries as aforesaid, it shall be lawful to a Superintendent of survey, or other Officer authorised by him, to call on any owner, occupant, or agent of the owner or occupant, to produce for inspection, all sunnuds, kowls, and leases, and all other title deeds and documents whatever, relating to his land, and if, within a reasonable period, to be fixed in writing by the said Survey Officer, the said owner, occupant or agent fail to produce such documents, the boundaries of the land may forthwith be determined on such evidence as may be available.
Clause 2nd. If the boundary of a field be undisputed, and its correctness be affirmed by the village officers then present, it may be laid down as pointed out; and if disputed, it shall be fixed by the survey officer according to the village records, or failing these, according to occupation as ascertained from the village officers, the cultivators of adjoining lands or other evidence.
XXXII. A survey or Settlement Officer may set apart unoccupied lands in unalienated villages for free pasturage for the village cattle, for forest reserves, or for any other public or municipal; purpose, and lands assigned specially for any such purpose shall not be otherwise appropriated or assigned without the sanction of the Revenue Commissioner.
XXXV. It is hereby declared that an occupant of any Government land is entitled, in virtue of his occupancy, to erect farm buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land. But if an occupant wishes to appropriate the land in his occupancy to any purpose unconnected with agriculture, so as to destroy or injure for cultivation, he shall first obtain the Collector's permission which shall be given on payment of a fine fixed according to such rules as may from time to time be prescribed under the orders of Governor in Council, and on entering into a written agreement to pay, in addition to such time, the annual assessment which may have been fixed on such land, at the settlement then current, and which shall remain liable to revision at any future settlement of the District.
XXXVI. The occupant of a survey field or recognised share of a field or number shall not be deprived of his right of occupancy in the said field or recognised share of a field by any Revenue Officer, as long as he continues to pay the assessment due thereon. This right of conditional occupancy is declared to be a transferable and heritable property; and any person, lawfully and authorisedly in occupation of any land, at the expiration of a settlement lease who shall consent to the rate which may be assessed on his land at a revision of assessment, shall be continued in his occupancy without question.
XIX. Any person desirous of taking up unoccupied assessed land must, previously to entering upon occupation, obtain the permission in writing of the local Native Revenue Officer (Mamlatdar or Mahulkutee); and in the event of his cultivating or otherwise taking possession of any portion of a number, without his application having been formally allowed, it shall be lawful for the Collector to levy from the said person a special assessment, not exceeding give times the assessment ordinarily chargeable on the entire number, and to summarily eject him from the land unauthorisedly occupied.
XL. The permission to occupy land provided for in the preceding section shall, in all future settlements, include the concession of the right of Government to all trees growing on that land, which are not then specially reserved.
XLII. Clause 1st. An occupant may relinquish his occupancy in whole or in part, provided the land so relinquished comprise whole fields or recognised shares of fields, and provided that he shall, on or before the 31st March of the current year, give a written notice of such relinquishment to the local Native Revenue Officer of the revenue division of the District in which the land of such occupancy is situated. In default he shall be liable for the revenue due therein for the following revenue year.
In 1903, the Record of Rights Act was passed. The relevant sections of this Act are as follows :-
(3) 'Save as otherwise provided by section 17, there shall be prepared as soon as conveniently may be and shall thereafter be kept in every village a record-of-rights in all lands belonging thereto, which shall include the following particulars,
(a) The names of persons who are owners, holders, mortgages, landlords or tenants of the land, or assignees of the rent or revenue thereof, in the whole or part of any survey number or other holding in the village.
(b) The nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching there.
(c) The rent or revenue (if any) payable by or to any of such persons, and
(d) Such other particulars as the Governor in Council may from time to time by rules prescribe in this behalf.
(2) The record shall otherwise be in such form and, subject to the provisions of section 6 , be compiled in such manner as the Governor in Council may from time to time by rules prescribe in this behalf.
(3) For the purposes of the preparation, correction and maintenance of such record-of-rights, there shall also be kept a register of mutations and such other registers and records as the Governor in Council may by rules prescribe in this behalf.
(4) The correctness of the entries in the record-of-rights and register of mutations shall be inquired into, and the particulars thereof revised, by such Revenue-Officers and in such manner and to such extent and subject to such appeal as the Governor in Council may from time to time by rules prescribe in this behalf.
4.(1) Subject to any exemption under section 17, any person acquiring, by succession, survivorship, inheritance, partition purchase, mortgage, gift, lease or otherwise, any right as owner, holder, mortgagee, landlord or tenant of the land, or assignee of the rent or revenue thereof, in the whole or part of any survey number or other holding in any village, in which a record-of-rights as aforesaid is being prepared or is kept, shall report orally or in writing his acquisition of such right to the village accountant within three months from the date of such acquisition.
Explanation I---The rights mentioned above include a mortgage without possession, but do not include an easement or a charge not amounting to a mortgage of the kind specified in section 100 of the Transfer of Property Act, 1882.
Explanation II.A person in whose favour a mortgage is discharged or extinguished, or a lease determines, acquires a right within the meaning of this section.
(2) Where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the village accountant.
5(1) The village accountant shall, on receipt of any report under section 4, whether made within the prescribed period or not,-
(a) at once give a written acknowledgement thereof to the person making the same;
(b) at once post up the report, or a copy or an abstract containing the substance thereof, in a conspicuous place in the village chavdi;
(c) give notice in writing of such report to all persons appearing from the report to have any interest in the subject- matter thereof ; and
(d) enter such report in his register of mutations.
(2) The village-accountant shall submit a report to the Mamlatdar of the taluka or the Mahalkari of the mahal, in which the village is included respecting the acquisition of any right of the kind specified in sub-section (1) of section 4, which he has reason to believe to have taken place, and of which a report should have been made, to him under that section and has not been so made, and such Mamlatdar or Mahalkari, as the case may be, may, if after due inquiry he finds any such acquisition to have taken place, authorise the making of such entry respecting it as he may deem fit.
(3) Where any objection is made to the correctness of any report under section 4, or of any entry respecting the possession or acquisition of any such right as aforesaid in the register of mutations, either before the village - accountant, or in the course of any inquiry hold under sub-section (4) of section 3 by a circle inspector, such village accountant or circle inspector shall give a written acknowledgement of the receipt of the objection to the person making the same, and enter the substance of such objection in the register of mutations, or such other register or record as the Governor in Council may direct in this behalf.
6. (1) No entry regarding the possession or acquisition of any such right as aforesaid shall be made in a record-of-rights by a village-accountant, unless -
(a) the making of such entry has been duly authorised, or
(b) the correctness of such entry has, under sub-section (4) of section 3, been inquired into , and the particulars thereof revised, if necessary, by a Revenue Officer of a rank not below that of a Circle Inspector or, in the case of a disputed entry or one falling under sub-section (2) of section 5, not below that of a Mahalkari.
(2) The village accountant shall, for a period of not less than one month before the transfer of any entry from the register of mutations to the record of rights, keep a copy of such entry posted up in a conspicuous place in the village chavdi.
In A.I.R. 1930 Privy Council at page 93 Their Lordships referred to the entire procedure for recording a right under the Record of the Rights Act, 1903 and specially commended it in view of the fact that a detailed inquiry was required before a right was recorded or a mutation was affected.
The earlier legislation is the Bombay Land Revenue Code 1879. Apart from the definition section, the most relevant section is section 37 which reads as follows :-
Section 37(1) :--- All public roads, lanes and paths the bridges, ditches, dikes, and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below high-water-mark, and of rivers, streams, nallas, lakes and tanks, and all canals, and water-courses, and all standing and flowing water, and all lands wherever situated which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except as in so far as any rights of such persons, may be established in or over the same and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of (the crown) and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as he may deem fit, or as may be authorised by general rules sanctioned by (the Government concerned) subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.
Explanation---In this section 'high water mark' means the highest point reached by ordinary springtides at any season of the year'.
(a) (2) Where any property or any right in or over any property is claimed by on behalf of the crown or by any person as against the crown, it shall be lawful for the Collector or a Survey Officer after formal enquiry of which due notice has been given, to pass an order deciding the claim.
(a) (3) any suit instituted in any Civil Court after the expiration of the one year from the date of any order passed.
(b) Under sub-section (1) of sub-section (2) or, if more appeals have under sub-section (1) of sub-section (2) or, if more appeals have been made against such order within the period of limitations, from the date of any order passed by the final appellate authority as determined according to section 204, shall be dismissed (although limitation has not been set up as a defence if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order, provided that in the case of an order under sub-section (2) the plaintiff has due notice of such order.
(a) (4) Any person shall be deemed to have had due notice of an enquiry or order under this section if notice thereof has been given in accordance with rules made in this behalf by the Provincial Government.
This section brings into effect in terms of legislation the basis premise that all land is Government land and any right in derogation thereof must be strictly established. The Bombay High Court in the Secretary of State for India v. Chimanlal Jamunadas 44 Bom.L.R. 295 held inter alia that even the statutory presumption under section 110 of the Indian Evidence Act would not apply to Government land and that all land was Government land as this was the principle embodied in section 37 of the Bombay Land Revenue Court of 1879.
CHAPTER III
REGULATION OF SALT MANUFACTURE BY STATUTE AND RULES
The earlier statute regulating the manufacture of salt was the Salt Act, 1837.
This Act described inter alia that no salt could be manufactured on any land without express permission.
By the Salt Act, 1850 a detailed provision was made to levy duties of customs and excise on the manufacture of salt. It was further prescribed that no new salt works were to be established without express permission.
On 28-10-1859 a resolution was passed which was already produced by the claimant .The rules which were accepted in the matter of salt lands are as follows :-
'Lordship in council does not consider it expedient to make any radical change at present in the mode in which ground rent is levied in different localities.
2. The management of the ground rent at Oorun however should be transferred from the Collector to the Customs Department, in conformity with the practice elsewhere.
3. For the Regulation of land which may hereafter be taken up for salt works Mr. Spooner proposes the following rules:
1. That for the future all lands taken up for making salt works, should be deducted from the Kumal and that the lands should then be transferred to the Customs Department.
2. That on any lands hitherto bearing assessment being made over to the Customs Department a fee of 2 pies per Indian Maund should be levied on all salt removed from the works situated thereon.
3. That on uncultivable lands being made over to the Customs Department, no fee whatever should be levied as ground Rent.
4. The first of these Rules is approved.
5. The second is approved with the exception that His Lordship in Council considers /3/- three pies a maund should be the rate of ground rent, and a proviso should be added to the effect that the full assessment must be paid until the salt works produce enough to bring in at /3/- three pies a maund, as much ground rent as the assessment would amount, to supposing the land assessable for cultivation.
6. It is desirable to discourage the appropriation of cultivable land while there is so much unusable waste available for salt works, and for this reason while the rate of ground rent is fixed at /3/- three pies per maund on salt manufactured on assessable land Mr. Spooner's third rule is approved, allowing exemption from ground rent for unusable land. In this latter case however it should be specified that the exemption is to continue only so long as salt is manufactured.
7. In submitting applications for opening new salt works the Commissioner of Customs, Salt and Opium should report full particulars regarding the nature and assessment of the land to be appropriated.'
In 1890 two important developments took place in the matter of land used for the manufacture of salt.
1) An amendment was made to the Bombay Land Revenue Rules 1881 by the addition of rules 7-A, 7-B and 7-C.
2) The Publication of rules regarding the disposal of application for permission to open new salt works.
3) Rule 7-A, 7-B and 7-C are as follows :-
EXTRACT OF LAND REVENUE RULES 1881.
'Rule 7-A :-The occupancy of salt lands, or of lands occasionally overflowed by salt water, should not ordinarily be disposed of, without first ascertaining by reference to the Salt Department, whether they are wanted or likely to be wanted for salt manufacture.
Rule 7-B :-On receiving an intimation from the Collector of Salt Revenue that any unoccupied land at the disposal of the Collector of the district is wanted or likely to be wanted for salt manufacture, the Collector of the District may, if he sees no objection to its appropriation for that purpose dispose, of such land to the Salt Department and shall, in such case, cause a note to that effect to be made in the village Register and shall also cause to be cancelled any entry in that Register as to any assessment fixed on it as land appropriated for purposes of agriculture.
Such land shall thenceforth be at the disposal of the Collector of Salt Revenue, subject to the general orders of Government to let for the manufacture of salt or to make other arrangements as to its use for that purpose, on such conditions and for such period as, subject to the said orders, he may deem fit.Rule 7-C If an occupant is on alienated land wishes to appropriate the same or any part thereof to the manufacture of salt or the construction of salt pans, he shall apply to the Collector of the district for permission to do so. The Collector of the district, if he sees no objection to such appropriation shall consult the Collector of Salt Revenue as to the terms on which such appropriation should be allowed, and may then either:-
a) Require the applicant to relinquish his occupancy rights and to enter into an agreement that such land shall be placed at the disposal of the salt Department, subject to a lease in favour of the applicant, on such terms and for such period as the Collector of Salt Revenue, under the general orders of Government may require, or may.
b) Permit the appropriation applied for, without requiring the occupant to relinquish his occupancy rights either -
(i) On payment of fine leviable under section 65 and the new assessment which may be leviable under section 48 ; or
(ii) On such terms as may be specially agreed on under section 67 of the Land Revenue Code.'
The salient features of the Bombay Salt Act 1890 are as follows:-
(g) 'manufacture' includes every process by which salt is separated from brine or earth or any other liquid or substance; and also every process for the purification or refinement of salt;
(h) Salt Work - includes :-
(i) A place used or intended to be used for the manufacture of salt and all embankments, reservoirs, condensing and evaporating pans, buildings and waste places situated within the limits of the same;
(ii) all drying grounds and storage platforms and store-houses appertaining to any such place; and
(iii) land on which salt is spontaneously produced;
(k) a 'private salt-work' is one not solely owned or not solely worked by Government:
(l) 'licensee of a salt work' means a person licensed to manufacture, excavate or collect salt at, or remove salt from, a salt-work;
The provisions of the Rules under the Bombay Salt Act, 1890 are as follows:-
RULES REGARDING THE DISPOSAL OF APPLICATIONS FOR PERMISSION TO OPEN NEW SALT WORKS.
No. 1733-B - The disposal of applications for permission to open new salt works shall, subject to the control vested in the Governor in Council and in the Commissioner by Bombay Acts, VII of 1873 and V of 1882 be regulated by the following rules :-
1. 'All applications for permission to manufacture salt are to be made to the Collector of Salt Revenue.
2. On receipt of any such applications the Collector of Salt Revenue shall in the first place make such enquiry as may be necessary to determine whether manufacture should be allowed or not in the locality referred to in the application. If it shall appear to him that manufacture may be allowed, and if the land be unoccupied, he shall report the result of his enquiry with his own opinion and the grounds thereof to the Commissioner of Salt Revenue, and shall, if the Commissioner so directs, apply to the Collector of Land Revenue to have the land placed at his disposal for salt manufacture in accordance with Rule 7-B of the rules under the Bombay Land Revenue Code.
3. If the Collector of Land Revenue agrees to the appropriation of the land for salt manufacture, the Collector of Salt Revenue shall thereupon have the land surveyed and cause a scheme to be prepared for its conversion into one or more salt works, on such plan and on such dimensions as he may consider most advantageous.
4. The scheme shall embody a plan showing the position, shape and dimensions of the work or works to be constructed, and of pans, reservoirs, banks storage platforms, channels, paths, etc. the routes by which only the salt is to be removed, the number and description of Chaukis and other buildings to be provided by the manufacturer, the contribution to be paid towards the cost of additional establishment, the rate of ground rent to be levied, and all other particulars and conditions which the circumstances of the case may deemed or which may from time to time be prescribed.
5(1) The Collector shall submit the scheme and plan so prepared to the Commissioner.
(2) On receiving from or through the Commissioner instructions as to the scheme and plan finally approved the Collector of Salt Revenue may proceed to dispose of the right to construct the salt works and to manufacture salt in accordance with it either to the original applicant, if there is no others, or by inviting tenders or by auction; or, if there be insufficient competition, they lease the ground for a suitable terms of years, on condition that the work constructed thereupon shall revert to Government on the expiry of the lease.
(3) In the event of the Collector desiring to substitute a lease for a term of years instead of putting up to auction the right to manufacture etc., he shall, before passing orders, submit the matter to the Commissioner, and act in accordance with his directions.
6. The person whose application, tender or bid is accepted or to whom the ground may be leased, shall be required to conform strictly to the scheme any departure from which, except with the permission of the Collector in writing under sanction previously obtained from the Commissioner will entail forfeiture of the permission to manufacture.
7. The Collector of Salt Revenue may, at any time of his motion under sanction previously obtained from the Commissioner apply to the Collector of Land Revenue to set apart for salt manufacture any unoccupied and unassessed land which he considers suitable and likely to be required for that purpose, and on the land being set apart may either at once proceed to prepare a scheme and dispose of the right of manufacture or await applications, as may seem most advisable.
8. It is to be distinctly understood that the right to manufacture salt conferred by the Collector of Salt Revenue under the foregoing rules, whether for a terms of years or otherwise, will be distinct from the occupancy and includes no proprietary right. On the determination on the right to manufacture, whether by expiry, forfeiture or otherwise, the possession of the ground and of any works constructed on it reverts to Government absolutely.
9(1) When the application relates to occupied land, the Collector of Salt Revenue, if he considers that manufacture may be allowed, shall inform the applicant of the terms upon which permission will be given, and refer him to the Collector of Land Revenue. On the receipt of an intimation that no objection to such appropriation exists on the part of the Land Revenue Department, the Collector of Salt Revenue shall, in consultation with the Collector of Land Revenue, consider on which of the alternative conditions mentioned in Rule 7-C of the Bombay Land Revenue Code Rules the permission to appropriate and the licence to manufacture should be granted, and shall submit the result of such consideration to the Commissioner of Customs, Salt, Opium and Abkari.
(2) If under instructions received from the Commissioner it is decided that the occupancy should be relinquished and that a lease shall be granted instead, the Collector of Salt Revenue shall prepare a scheme under Rule 4 of these rules. In any other case the terms on which the licence to manufacture salt shall be granted shall be such as may from time to time be prescribed. All decisions under this Rule shall, before the application is finally disposed of, be communicated to the applicant, who, if the licence to manufacture salt is granted, will be bound by all the conditions so decided on. '
The Land Revenue Rules of 1905.
The significance of these rules is evident from the fact that any occupant of unalienated land who was entitled to retain his occupancy right require a written agreement containing certain undertakings. The relevant rules are rules 9 and 49 :
EXTRACT OF THE LAND REVENUE CODE RULES 1905
Rules made under powers conferred by section 214 of the Bombay Land Revenue Code, 1879 (A of 1879).
'9. Land and all rights in or over the same or appertaining thereto, which are the property of Government of India, Collector) may be disposed of by the to dispose of land &) Collector in any manner only as authorised in ) authorise, except with these rules. ) the previous express sanction of Government :
Proviso as to Salt lands .. Provided that ....
a) The occupancy of salt lands, or of lands occasionally overflowed by salt water, shall not ordinarily be disposed of without first ascertaining by reference to the salt department whether they are wanted or likely to be wanted for salt manufacture; and
b) On receiving an intimation from the Collector of Salt Revenue that any unoccupied land at the disposal of the Collector of the District is wanted or likely to be wanted for salt manufacture, the Collector of the District may, if he sees no objection to its appropriation for that purpose dispose of such land to the Salt Department, and shall in such case, cause a note to that effect to be made in the village Register, and shall also cause to be cancelled any entry in that register as to any assessment fixed on it as land appropriated for purpose of agriculture. Such land shall henceforth be at the disposal of the Collector of Salt Revenue, subject to the general orders of Government, to let for the manufacture of salt or to make other arrangements as to its use for that purpose, or such conditions and for such period as, subject to the said orders, he may deem fit.
49. No occupant of unalienated land shall appropriate the same or any part thereof:
Appropriation of land to the manufacture of salt to the manufacture of without the previous salt prohibited except permission in writing, first on certain conditions of the Collector of Salt Revenue and then of the District. The Collector of district may, in any case where such permission is granted either ......
(a) require the applicant to relinquish his occupancy rights, and to enter into an agreement that such land shall be placed at the disposal of the Salt Department subject to a lease in favour or the applicant on such terms as the Collector of Salt Revenue under the general orders of Government may require; or
(b) permit the appropriation applied for without requiring the occupant to relinquish his occupancy rights on,
i) payment of such fine, not exceeding half the amount leviable under section 65 as the Collector may deem proper, and
ii) the execution of an agreement:
1) that the applicant shall pay, in lieu of the existing assessment and local fund cess, such amount or rate as may be imposed by the license to be granted by the Collector of Salt Revenue in accordance with the general and special orders of Government, and shall also in respect of the land appropriated conforms to all the conditions of such licence, and
2) that whenever the Collector of Salt Revenue declares that the land, or any part thereof is not used or has ceased to be used for the manufacture of salt, such land shall forthwith become liable to the survey assessment which was chargeable upon it immediately before it was permitted to be appropriated for the manufacture of salt.'
The Land Revenue Rules 1921 is the next piece of legislation dealing with salt lands. The relevant rules under that enactment are rules 40 and 76 as follows:
'RULE 40 Grants of Salt-marsh lands for reclamations Salt land or lands occasionally overflowed by Salt Water which is not required or likely to be required for salt manufacture, may after consultation with the Commissioner of Salt be leased for purposes of reclamation by the Collector, subject to the confirmation of the Commissioner on the following maximum terms and with such modifications in particular cases as may be deemed fit.
Rule 76 : Use of land for the manufacture of salt prohibited except on certain conditions.
(1) No occupant or unalienated land shall use the same or any part thereof for the manufacture of salt without the previous permission in writing, first of the
'Collector of Salt Revenue' and then of the Collector of the District.
(2) The Collector of the District may, in any case where such permission is granted, either
(a) require the occupant to relinquish this rights of occupation, and to enter into an agreement that such land shall be placed at the disposal to the Salt Department, subject to the lease in favour of the applicant on such terms as the Collector of Salt Revenue under the general orders of Government may require; or
(b) permit the use applied for without requiring the occupant to relinquish his rights of occupation on the following conditions :
(i) that the occupant shall pay such fine as the Collector may deem proper, not exceeding the one tenth of the amount which would be leviable under section 66 in a case of unauthorised use, and
(ii) that the occupant shall execute an agreement that he will pay, in lieu of the existing assessment and local fund cess, such amount or rate as may be imposed by the licensee to be granted by the Collector of Salt Revenue in accordance with the general and special orders of Government and shall also in respect of the land used conform to all the conditions of such licence; and
(iii) that whenever the Collector of Salt Revenue declare that the land, or any part thereof, is not used or has ceased to be used for the manufacture of salt, such land shall forthwith become liable to the survey assessment which was chargeable upon it immediately before it was permitted to be used for the manufacture of salt.'
On the contrary, Dr. Chandrachud appearing for respondents would submit that the right, title and interest of the respondents in the lands comprised in the Gatacha Agar being the subject matter of the present appeal can be traced in the following manner :
1. Between 1882 to 1905 the predecessors in title of the respondents (being their ancestors) acquired the lands under 17 registered deeds of conveyance. These registered deeds categorically and expressly transfer a right, title and interest in the lands themselves. It may be noted that the Jawaharlal Nehru Port Trust which was impleaded as Appellant in these proceedings has supplied English translations of the Marathi copies of these deeds. The English translations in most, if not all, the deeds erroneously omit a reference to the land which was the subject matter of transfer. The Marathi deeds have been referred to before the Hon'ble Court and they expressly transfer not merely the salt pans but the land itself. In any event, a transfer of the salt pans necessarily took place together with a transfer of the land since the land, the salt pans as well as the salt work constitute one entity.
2. The deeds of conveyance contain broadly, the following particulars;
a) The fact that land admeasuring a certain specified acreage and comprising of a certain number of salt pans of the ownership of the vendor was being transferred together with the reservoirs, condensors, tapavanis, embankments, khasta kharaba etc;
b) That the land was assessed on the basis of acreage (up to 1890);
c) A reference to the previous owners'/ancestors' ownership;
d) An assertion of the fact that the name of the vendors appeared in the Government records;
f) The sale of the property for valuable consideration;
g) A recital of the transfer of ownership rights and the handing over of possession to the purchaser (the predecessors of the respondents);
h) An undertaking to get the land entered in the name of the purchasers in the records of the Government;
i) A reference in certain deeds to the permission granted by the Customs Department to the sale.
The respondents in support of their abovesaid submissions relied on the chart showing the details of the said 17 registered sale deeds. The chart shows the date of the sale deeds, the names of the purchasers and vendors, the area of the land sold, the land assessment as reflected in the sale deeds, the page references in the paper book and the Exhibit number.
3) The lands thus acquired by the respondents between 1882 and 1905 admeasured 36 acres 17 gunthas and 4 annas.
PURCHASES FROM THE GOVERNMENT IN 1911 AND 1929.
4. Thereafter, the respondents acquired an additional area of 21 acres 20 gunthas on 10th February 1911 by the payment of valuable consideration to the Government. The respondents had made an application to the Government for these additional lands on ownership basis as an extension to their existing salt work (Vol. III p. 1089 A). Thereupon an order dated 25th January 1911 was passed by the Collector granting the said lands to the respondents. (Vol. III p. 1093). On 10th February 1911 the respondents executed a Kabulayat recording that they had paid an occupancy price of Rs. 182-12 and that possession had been handed over to them. (Vol III, p. 1094). The kabulayat records that the lands will be used for the manufacture of salt. These lands, which admeasure 21 acres and 20 gunthas were out of original Survey No. 196.
5. Subsequently the respondents made an application on 31st July 1917 for the allotment of additional land on ownership basis. (Vol III, P. 1171). Reminders were thereafter addressed. Ultimately the lands to be granted to the respondents pursuant to the Collector's order dated 22nd July 1929. The lands were from Survey No. 196 and admeasure 9 acres 28 gunthas 8 annas. A receipt was issued on 22nd July 1929 in respect of the payment of the purchase price of Rs. 170.vi) The original lands purchased under the 17 registered deeds between 1882 and 1905 and the lands subsequently acquired from the Government in 1911 and 1929 admeasure in all 67 acres 25 gunthas and 12 annas. These lands were amalgamated to form Survey No. 205.
vii) On 24th December 1943 the then owner of the lands, Shri Mohd. Amin Mohd. Abdullah Bhaiji (grandfather of the respondents) executed a registered deed of gift in favour of his son Shri Mohd. Mohsin Mohd. Amin Bhaiji. This deed of gift is at Vol. III p. 1222 (English translation at p. 1229A). This deed of gift is noted in the Zamin Kharda. The Collector in pursuance of the provisions contained in paragraphs 310 to 313 of the Bombay Salt Manual, 1932 had granted both a prior and subsequent permission to the execution of this gift deed. The prior permission was dated 4th July 1940 while the subsequent permission was dated 31st August 1944.
23. By referring to the legislation, rules (cited by the learned Additional Solicitor General) and as referred to above, it was contended by the learned Additional Solicitor General that in case salt work started prior to 1859 on the Government land it should be with mere right to use it for manufacture of salt and could be unalienated land held by the occupants, and in case it is unalienated land held by the occupants then there must be some document which should go to show the nature of grant, permission or exemption in favour of the occupant with reference to the said land and a salt manufacturer who is unable to produce any such record can have no right with reference to the land where he is manufacturing salt. Then in that event if the manufacture of salt is stopped the land would revert to Government.
24. In case the salt manufacture commenced after 1859 then according to the learned Additional Solicitor General it is necessary for the occupant of the alienated land wishing to manufacture salt to relinquish the rights and according to him, after relinquishing the said rights, he could retain the land only as per the terms of licence of the grant. Therefore according to the appellants the persons claiming salt pan after 1859, must necessarily first establish the nature of their occupancy rights with reference to occupation particularly in public record and thereafter to establish that he has retained his occupancy rights.
25. In respect of the salt works started after 1890 i.e. after amendment of land revenue rules 1890 and framing of rules under Bombay Salt Act 1890, the nature of evidence required by the claimants must be necessarily be endorsed in the public records as also documents showing nature of the grant or occupancy rights in the evidence showing the retention of this occupancy. After 1905 along with the evidence referred to above the claimant would also be required to show the agreement by which he agreed to pay various amounts as a consideration for retention of occupancy rights.
26. In regard to works which have started after 1859 and in any event after 1890 the works would be presumed to be on Government land unless evidence of occupancy rights of unalienated land was available and evidence of actual retention. According to the learned Additional Solicitor General the trial Court misconstrued the various provisions and misinterpreted the word Shilotre and merely relying on the entries in the salt register and building register came to the conclusion that respondent claimants are the owners.
27. The learned Judge in his judgement referred to A.D. 1808, Regulation I Clause IV on page 861 of Volume II
'IV : First. There has existed from that time a description of land property, under the denomination of Shelocta (called also serrotore) consisting of lands said to have been acquired by the natives on favourable terms of tenure, by purchase from their Portuguese masters, which property has been respected throughout the subsequent, revolutions.
Second. Another description of Shelocta tenure consists of certain ground gained from the sea by embankment, or brought into cultivation from the jungle or forest, at the personal expense of individuals, what thence continued to pay thereon, in several instances, a fixed quit-rent without reference to the produce.
Third. Some of the coarser grains, pulse, and vegetables were raise a very limited item, in a few available spots in the dongar or hills, this was known under the name of dongar or hill-cultivation.
28. According to the learned Additional Solicitor General after referring to the aforesaid clauses the trial Court merely referred to clause IV and concluded Shilotre means who acquired the land on favourable terms by purchase from Portuguese Masters. While doing so, the trial Court has totally lost sight of the fact that under the said clause IV there are also sub-clauses and sections which show that Shilotres tenure is also with reference to Government land and Government salt work. After going through the aforesaid provisions, we are of this opinion that the trial Court was wrong in coming to the conclusion that Shilotre tenure means the tenure purchased from Portuguese masters as owners. After reading Clause IV it appears that Shilotre tenure may be with reference to private land, Government land and Government salt works. According to the appellants there is a clear distinction between the salt work and the land. A private salt work is a work which is not solely owned or solely worked by the Government . A great significance attaches to the definition of salt work as the legislation does not even appear to contemplate a private salt work in semantic sense viz., a case where both land and work belonged to private parties. As per the said definition of salt work the said definition excludes land as the land generally belonged to the Government unless there is evidence to the contrary.
29. With reference to the aforesaid arguments as advanced on behalf of the appellants legal position appears to be that unless the owner who claims the land proves his title to the land where the salt work is being carried, the land shall be deemed to be the Government land.
30. However in the present case the respondent claimants are claiming the suit land as they are the owners having valid title to the suit land and therefore at this stage it is necessary to refer to the sale deed of 1881 relied upon by the respondents claimants. Out of the total land of 67 acres 25 gunthas and 12 annas comprising in survey No. 205 it is the case of the respondents claimants that they are the owners in respect of 36 acres 17 gunthas and trace their ownership to a sale deed dated 18th August 1881. As regards the rest of the land i.e. 21 acres 20 gunthas, according to them, they have purchased on 10th February 1911 and the 9 acres 28 gunthas and 8 annas which they have purchased on 27th July 1929 from the Government. In view of this it is desirable to refer to the averments in the sale deed dated 18th August 1881. This sale deed is executed by official assignee of the estate and effect of Thakur Laxmandas Padamsi. Under the said sale deed it is stated that all those one hundred and seventeen salt pans situate at Ooran in the Pot Tookdee of Karanj in the Talooka of Panvel in the District of Tanna in the registration sub-district of Ooran more particularly described in the schedule hereunder written together with all ways, paths, passages, waters, watercourses, trees, profits privileges, advantages, rights members and appurtenances etc. And in the Schedule of the sale deed the property is described as various salt pans in all about 42 in number spread over various gats. It is strongly argued on behalf of the appellants that the said sale only refers to the salt pans and the land is not mentioned. From the bare reading of the said sale deed, it appears that by the said sale deed official assignee has sold and transferred in all 42 salt pans, spread over various gats and the sale deed does not refer to the sale of the land. Mr. Dada, Additional Solicitor General appearing on behalf of the appellants further contended that the said sale deed is of 1881 drafted by advocates and in view of the legal position, more particularly resolution of 1859, if a vendor i.e. the liquidator intended to sell the land he would have also traced the title [to show as to how the vendor is the owner of the land and not merely the owner of the salt pans. According to our opinion as expressed earlier, the aforesaid sale deed only refers to the sale of the salt pans and not the sale of the land . From the said sale deed onwards the respondents claimants have given the history of the title as to how various transactions took place and ultimately the land was transferred in the name of various claimants. Respondents have also relied upon various sale deeds for example sale deed dated 8th August 1882. By the said sale deed Vallabhdas Shivji has purchased 48 salt pans in Agar Banat Ghatsa. Now in the sale deed in the description of the property transferred, suit land, is also mentioned. Relying on the said word 'land' used in the description of the property it is argued on behalf of the respondents claimants that by the aforesaid sale deed Vallabhdas Shivji purchased not only salt pans but also right, title and interest in the said land. According to our opinion there is no substance in the aforesaid arguments. We have already observed earlier that in view of the legal position as discussed by us unless the respondents claimants succeed in showing the valid title to the land the land shall be presumed to be the land of Union Government. In order to establish the title the respondents claimants traced their title to the sale deed of 18th August 1881, where in their predecessor in title purchased salt pans from the liquidator. In the said sale deed reference is to the sale of the salt pans and not to the sale of land and therefore by a sale deed dated 8th August 1882 Vallabhdas Shivji predecessor in title of the respondents could not have purchased the suit land which was not ownership of the vendor but has only purchased the salt pans. The aforesaid observations made by us as regards the sale deed dated 8th August 1882 shall also apply to the other sale deeds wherein reference has been made to the land. Therefore though the respondents claimants have traced their title to the salt pan till 1881, they have failed to establish that they are the owners of the land, and therefore because of the various provisions more particularly section 37 of the Land Revenue Code of 1879, Union Government is presumed to be the owner of these suit lands. The question further is as to whether due to long standing legal possession and also due to certain entries in the record more particularly Salt Register and building register maintained by the salt department, the respondents claimants can claim ownership.
31. Mr. Dada learned Additional Solicitor General appearing on behalf of the appellants states that in view of the preamble of Bombay Regulation XVII of 1827, in view of section 11 City Survey Bombay (IV) 1868 and section 37 of the Bombay Land Revenue Code that there is preemptory right in the Government in respect of the lands which are not proved to be the ownership of the private individuals, the presumption in such cases is that the land is owned by the Government. In order to support his arguments, the learned Counsel relies on the decision of the Madras High Court referred in Pothukutchia Apparao and others v. Secretary of State, A.I.R. 1938 Mad (193) and also ratio of the case decided in 1944 Bom.L.R. 295. As against this it was argued by the learned Counsel Mr. Bobde on behalf of the respondents that in view of the decisions of the Bombay High Court, the present case because of the applicability of the section 110 of the Evidence Act longer legal possession of the respondents leads to title.
32. The learned Counsel Mr. Bobde appearing on behalf of the respondents strongly contended that in view of the fact that the documents relied upon by the respondents claimants are with reference to the transactions of period more than 100 years. As held by the Privy Council in Bawa Magurium Sitaram v. Kasturbhai Manibhai 1922 Pc163 more particularly at page 165 in the present case, the Court should presume the grant in respect of the suit land being made by the Government. In the aforesaid case decided by the Privy Council, the question was as to whether leases granted were the permanent leases or which could be terminated if the rent was not paid. The Privy Council after taking into consideration the lapse of 100 years, when every party to the original transaction had passed away and when it became completely impossible to ascertain as to what were the circumstances which caused original grant to be made, it was held that the Court will follow the policy adopting as far as possible securing possession to the people who are in turn lawfully holding of the asset assuming that grant was lawful and lawfully made. According to our opinion the aforesaid authority cannot be applied in the present case. In the present case the respondents claimants are relying upon the sale deed of 1881 for showing that their predecessors in title acquired the ownership of the land in question as we have already held that by the said sale deed of 1881 the respondents purchased salt pans and not the suit land. This decision cited by learned Counsel Mr. Bobde is not applicable in the facts and circumstances of this case. Mr. Bobde also relied upon the ratio of the case reported in 1944 Bom.L.R. page 295 more particularly on page 318. This authority was cited by Mr. Bobde, only to reiterate his contention that section 110 of the Evidence Act is applicable also against the Government and also to show that the possession of the respondents was of such character as would lead to presumption of title and such sort of possession as would be regarded as lawful and original. It is true that at any point of time the respondents claimants possession was lawful on the land. But according to our opinion the said authority is of no use to the respondents claimants to establish their title. In the present case the question of presumption under section 110 is of no consequence, the reason being because of the presumption under section 37 of the Land Revenue Code. The presumption under section 110 of the Evidence Act is applicable against all persons excepting the owners having title. In the present case since we have held that the Union Government is owner of the land there is no question of applying presumption under section 110. The aforesaid authority was also relied upon by the learned Additional Solicitor General wherein the Division Bench of this Court endorsed the view taken by Madras High Court in A.I.R. 1938 Mad 193 to the effect that section 110 of Evidence Act does not apply where there is statutory presumption in favour of the Government. In fact according to our view observations in 1944 Bom.L.R. 295 supports the contentions of the appellants in this case. We have already come to the conclusion that because of the presumption under section 37 of the Land Revenue Code the Union Government is presumed to be the owner of the suit lands. On the said point of possession the learned Counsel Dr. Chandrachud also referred to the observations made in A.I.R. 1922 P.C. 163 : A.I.R. 1933 P.C. 103, C. Periaswami v. Sunderson Ayyar : [1964]8SCR347 and A.I.R. 1991 Supp S.C.C. 228. According to our opinion the ratio of the aforesaid cases cited by Dr. Chandrachud are also not applicable in the present case in view of the fact that in the present case under section 37 of the Land Revenue Code the Union Government is presumed to be the owner.
33. Though it is the case of the respondent-claimants that they are the owners of the suit land, in view of the various sale deeds they have relied upon, independent of that, it was strongly argued by Dr. Chandrachud that in view of the entries in the Government records, more particularly in the registers maintained by the Salt Department and in view of the admissions given by the officials of the appellants, the respondent-claimants have proved their title. In view of this, now we will discuss the evidence relied upon by the respondents to show that they are the owners because of various entries in various Government documents and certain admissions.
34. Dr. Chandrachud, learned Counsel appearing on behalf of the respondents, firstly, relied upon Zamin Kharda which are at pages 1496-1498 and 1505-1506 in Vol. IV. Zamin Kharda constitutes, according to Dr. Chandrachud, a clear and unambiguous recognition by the Government of India of the interest of the respondents in the land. He further contended that Zamin Kharda maintained as per the rules, regulations and statutes has the following substantial significant features :-
(a) There is a reference to the date of opening of Agar as 1820-21 which signifies that Agar belonging to salt work was, in fact, carried on in the suit lands from 1820-21, though the respondent-claimants have claimed to press their title till 1881.
(b) The date of the original survey 1889-90.
(c) The fact that the Agar was not Government or Inami but private. According to Dr. Chandrachud, if the land would have been ownership of the Government, then in Zamin Kharda, salt work would not have been referred to as private.
(d) The name of the Shilotris including the predecessors in title of the respondents.
(e) The boundaries of the lands, the extent of the land holding and the nature of the lands together with their survey number.
(f) The division of the lands between the uncultivated area and the cultivated area.
(g) Reference to the subsequent purchase of lands for inclusion in the original salt work against the payment of occupancy price to the Government.
(h) The devolution of the lands by a deed of gift dated 24th December 1943.
(i) The prior permission granted by the Collector on 4th July 1940 for the transfer of lands under the Gift Deed and the subsequent permission dated 31st August 1944 granted by the Collector to the registered deed of gift.
(j) Reference to the payment of mundage on the lands.
According to Dr. Chandrachud, Zamin Kharda is a document maintained by the Salt Department under the statute and it can clearly reveal that the respondent-claimants salt work was private and not Government.
Secondly, Dr. Chandrachud also relied upon the Register of Salt Licences (Vol. VIII pages 4474-4475 and 4496-4497). This register is maintained under the statute under section 13 of the Bombay Salt Act, 1890. In this register, certain particulars of the salt work are mentioned as under :-
(a) The fact that register is maintained under sections 12 and 13 of the 1890 Act.
(b) The names of the licences upon whom the licence has progressively devolved after the expiry of the earlier licence holder in the family.
(c) The granting of the first licence on 28th June 1883 and the subsequent renewals on 13th July 1898, 10th October 1941 and thereafter until 30th June 1983.
(d) Reference is contained to the name and situation of the salt work, the area of 67 acres 25 and 3/4 gunthas of the land, the total number of salt pans (612) and to the terms of tenure. The entry reflects 'as at No. 1'. No. 1 is the entry of Agar Santosh (Vol. VIII pages 4496-97) which makes it clear that the land is Shilotri land.
35. According to Dr. Chandrachud, the aforesaid entries in the Salt Register maintained under sections 12 and 13 of the Salt Act of 1890, the respondent-claimants and their predecessors are shown as operating the salt work on the suit land as Shilotris.
36. Dr. Chandrachud also relied upon the entries in the Building Register (Vol. IV page 1460). The building register contains a reference to the Ghat Chowki No. 49 constructed on the lands in question. In the remarks column there is an express and categorical statement that 'land belongs to the Shilotri' which means, according to Dr. Chandrachud, the land is of the ownership of the respondent-claimants who are Shilotris.
37. Dr. Chandrachud strenuously argued that the aforesaid documents are maintained by appellant No. 1 in normal and usual course of Government duties under the statute and this documents recognizes and admits the interest of the respondents in the land. Secondly, these documents also reflect uninterrupted possession enjoyed by the respondents. These documents also reflect the entitlement of the respondents to carry on their lawful business of the manufacture of salt as the owners. The respondents have also fulfilled their obligations under the licence of payment of mundage and legally the said licence for carrying out the salt business devolved from generation to generation since the opening of the salt works. Lastly, it was contended by Dr. Chandrachud that by diverse permissions and sanctions, the appellants had recognized the right, title and interests of the respondents in the salt work and the land. In view of this, it was contended that the appellants are now estopped from contending that the respondent-claimants have no title, more particularly as they for a long time acquiesced in the title of the respondent-claimants.
38. Apart from the aforesaid arguments, it was also argued by the learned Counsel Dr. Chandrachud on behalf of the respondent-claimants that there are certain acknowledgements and admissions on the part of the appellants wherein they have admitted the respondent-claimants as the owners of the suit land. For that purpose, he relied upon the letter of the Salt Commissioner, Jaipur, dated 16-1-1965 which is at Vol. III at page 1248 and the second letter of the Inspector of Salt, Sheva, which forwarded the first letter to the respondents (Vol. III page 1246). In the aforesaid letter dated 16-1-1965, the Commissioner of Salt, Jaipur, noted that the Government was in the process of constructing various amenities out of the proceeds of the cess. Since the lands did not belong to the Central Government, the question was examined by the Ministry of Industry in consultation with the Union Ministry of Finance and the Union Ministry of Law & Justice. In the said letter, the Commissioner asked his administrative subordinates to seek a declaration from the individual owners of the land (i.e. the respondent-claimants) that in the event the Government were to construct a public amenity such as a road thereon, that the amenity would be made available to the salt industry in general. Based on the aforesaid letter of the Salt Commissioner, the Inspector of Salt, Sheva, wrote the second letter to the respondents. The third letter is dated 30-6-1970 written by the Deputy Salt Commissioner, Bombay, wherein while dealing with the proposed new road, it has been stated that the Salt Department will have to obtain the concurrence of the licensees concerned who own the land on the two sides of the road.
39. Mr. Dada, learned Addl. Solicitor General, contended that the use of the expression 'private' in Zamin Kharda relied upon by the respondents and extensively commented by the trial Judge in favour of the claimants is irrelevant to decide the issue of ownership. This is especially so as the definition of 'salt work' includes land. 'Salt Work' is defined in sub-section (h) of section 3 of the Bombay Salt Act, 1890 which shows that 'salt work' would include a place used or intended to be used for the manufacture of salt and all embankments, reservoirs, condensing and evaporating pans, buildings and waste places situated within the limits of the same. 'Private salt-work' which is defined under sub-section (k) of section 3 is one which is not solely owned or not solely worked by Government. In view of this, the expression 'private' may not necessarily show that the land in question did not belong to Government, especially since the word 'private' is used in connection with the work and 'private salt work' is defined with reference to the work not solely owned or not solely worked by the Government. The words 'Inami', 'Government', and 'private' in Zamin Kharda appear to refer to the operation of the salt work whether by Inamdar, Government or by some private party. To substantiate his argument, Mr. Dada referred to the Law of Land Tenure by Mr. Gopal Dandekar which is as under:
SALT WORKS, Meaning of Private... Shilotri.
40. It is necessary to distinguish and carefully bear in mind the distinction between the salt works and the land. A private salt work is a work which is not solely owned or solely worked by the Government. A great significance attached to this definition as the Legislature does not even appear to contemplate a private salt work in the semantic sense, namely a case where both land and works belongs to a private party.
41. It is submitted that generally the context in which the phrase salt work is used would appear to exclude the land as the land generally belongs to and in the absence of any evidence is presumed to belong to the Government. If, however, works are held to include land the use of the phrase private salt work in any document can never show that the land is private and not belonging to the Government. The use of the expression 'private' in the Zamin Kharda which has been extensively commented upon by the learned trial Judge in favour of the claimants really is irrelevant in the matter. The expression 'private' can never show that the land in question did not belong to the Government since it would appear that the word 'private' is used in connection with the works and private salt works in any event is one which is not solely owned or worked by the Government. The phrases 'Inami', 'Government', or 'private' in the Zamin Kharda would clearly appear to refer to the operation of salt works whether by the Inamdar, the Government or by some private party. In this connection, the extracts from various authors may be referred to.
42. In the Law of Land Tenure by Mr. Gopal Dandekar, land tenure has been described, inter alia, as: 'the word tenure ordinary means the act or right or manner of holding. Land tenure means the right under which or mode or manner in which the land is held and vests.' Mr. Dandekar also states that in India at least in the Bombay Presidency, the expression tenure may be said to be the legal relation in which the holder of any lands stands to Government or any landlord with respect to land he holds.
43. The list of tenures recognized by the custom of the country are noted by the author. Shilotri tenure as referred to by Mr. Dandekar is of three categories as can be seen from the following observations:
'There is the 'Shilotri' tenure in the Kolaba District, especially in the Kharepal villages of the district. 'Shilaotri' lands are lands that have been embanked and reclaimed from the sea, and the permanence of which is dependent on the embankments being kept up. These reclamations are commonly known as 'Khars'. The tenure is of three varieties. (1) Shilotri proper, under which the Khar belongs to the person by whom it was reclaimed or his representatives. The Shilotars are considered to have a proprietary right, they let out these lands at will, and according to old custom levy a maund of rice per bag, in addition to the assessment, for the repair of the outer embankments. These lands were surveyed and reassessed at the survey in the same way as Government lands. (2) The second class of Shilotri lands is that in which either Government reclaimed the Khars or became possessed of them by lapse. The cultivators of these kinds hold their land just as other survey tenants do; by an extra assessment, which is supposed to represent the Shilotrimum mentioned above, is appropriated to the repairs of the embankments. (3) The third class of Shilotri lands is that in which reclamations were made by associations of rayats on special term made with Government. This variety of tenure is distinguished from the Shilotri tenure proper by the term Kulang. In the Kulang Khars the tenants carry out repairs of embankments jointly, each having a share of the land and assessment recorded against his name.'
The following table will show at a glance the different kinds of Shilotri Khars.
Shilotri KharsPrivateGovernmentSole Kukaarag Reclaimed by Govt. Privateproprietary Khars Govt. KharsThe respon- (Jt. Silitoridars-joint (2) lapsed to Govt.sibility to repair proprietors)is on the Joint responsibility forproprietor repairs Responsibility for(1) (3) repairs on Government.
The Khars mentioned by the figures represent the three kinds of 'Shilotri Khars' mentioned above.
44. The learned Addl. Solicitor General relied on three authorities to support his contention that through entries in the Zamin Kharda, the respondent-claimants cannot establish their title as the said documents are maintained under executive instructions and, therefore, no title can be founded upon it. He further contended that reliance on the register of licences also cannot avail the claimants as the register of licences is maintained under para 326 of the Salt Manual (page 102) and it is neither the function nor the province of this register to record any title. He further contended that reliance placed by the respondent-claimant on the entries in the register of buildings as required in para 636 of the Salt Manual is equally misconceived as any entry in the remarks column with reference to land cannot be based on any legal requirement and, in any event, is not based on any statute. He further contended that according to the Comments of Sarkar in his book 'Law of Evidence' at page 684, statement whether by register certificate, report or the like is admissible only insofar duty exists to make statements on the specific subject-matter. In view of this, he submitted that, in fact, these entries cannot be the evidence to prove the title of the respondents. In order to lend support to his aforesaid argument, the learned Addl. Solicitor General relied upon certain cases. In Gangabai v. Fakirgowda the Privy Council held that entries made under section 7 of the Bombay Land Revenue (Amendment) Act, 1913 are not, in any way, conclusive, but they are evidence of the facts recorded therein and as such are relevant under the Evidence Act. He also relied on the observations made by the Privy Council in Nageshar Baksh v. Ganesha, A.I.R. 1920 P.C. 46 in the matter where broad question of partition of rights or separation of interest, the Privy Council observed that if higher weight is given to such entries, that might open the way for much injustice and afford temptation to the manipulation of records or even of the materials for the first entry. Lastly, the learned Counsel also relied upon the observations made by the Supreme Court in Jattu Ram v. Hakam Singh & ors., : AIR1994SC1653 wherein the Supreme Court held that entries create no title. They are fiscal purposes. According to our opinion, Zamin Kharda as well as licence register and building register relied upon by the respondents are maintained by the Salt Department under the Bombay Salt Act, 1890 and under Salt Manual with the object to administer discipline in the salt work, according to law, mainly from the point of view of recovery of mundage and, therefore, one cannot give much importance to such entries. Further, in the present case, in view of the definitions of 'salt work' and 'private salt work' under the Act as given above, 'salt work' includes land and 'private salt work' as defined in the Act of 1890 is not one solely owned or not solely worked by the Government. If 'salt work' is described as private, it does not necessarily mean that the owner of the salt work is also owner of the land. By our earlier discussion, we have already opined that in the present case, more particularly in view of section 35 of the Bombay Land Revenue Code, appellant No. 1 is presumed to be the owner of the land. Therefore, merely because in the entry column of Zamin Kharda and licences, entries are made to the effect that on the suit land, there were private salt work and the respondent-claimants are owners of the salt work will not help the respondent-claimants to establish their title.
45. The learned Counsel Dr. Chandrachud also contended that in view of section 20 of the Maharashtra Land Revenue Code, 1966, there can be no presumption that the title to the lands in question vested in the Union Government. He further contended that the acquisition in the present case commenced on 26-2-1973 under section 4 of the Land Acquisition Act and on 11-12-1975 under section 6 of the Land Acquisition Act. On the said date, the Maharashtra Land Revenue Code, 1966 had come into effect, repealing the provisions of the Bombay Land Revenue Code, 1879. Section 20 of the said Act is as follows:-
'Title of State in all lands, public roads, etc. which are not property of others: (1) All public roads, lanes and paths, the bridges, ditches, dikes and fences, on, or besides, the same, the bed of the sea and of harbours and creeks below the high water mark, and rivers, streams, nallas, lakes and tanks and all canals and watercourses, and all standing and flowing water and all lands wherever situated, which are not the property of persons legally capable of holding property, and except insofar as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights in or over the same, or appertaining thereto the property of the State Government and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as may be prescribed by the State Government in this behalf, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.'
46. After going through the aforesaid section 20, it is clear that the lands of the kind referred to herein are property of the Union Government. This, in fact, is consistent with the development of the law since the enactment of the Government of India Act, 1935. According to him, prior to the 1935 Act and particularly under the provisions of the Government of India Act, 1919, there was no effective demarcation of legislative powers between the Central Government and the provinces or States. The provinces were the administrative agencies of the Centre. The Government of India Act, 1935 changed this position by effectively demarcating the fields of legislative competence between the Centre and the States. Sections 99 and 100 of the Government of India Act defined the fields of legislative competence in respect of the three lists contained in the Seventh Schedule. Land in the widest sense of the expression became a subject of provincial legislative competence under Entry 21 of the Provincial Legislative List (list 2 of the Seventh Schedule). Entry 39 of that list dealt with land revenue. The Constitution of India has continued this demarcation by vesting legislative jurisdiction over land in the State Legislature under Entry 18 of the State List in the Seventh Schedule. Entry 45 of the State List refers to the land revenue. The expression 'land that is to say, rights in or over land, land tenures........' was interpreted in the widest possible sense by the Privy Council in A.I.R. 1947 P.C. 72, Meghraj v. Allah Rakhia, and in the earlier decision of the Federal Court in United Provinces v. Atiga Begum, A.I.R. 1941 P.C. 1708. After referring to section 20 of the Maharashtra Land Revenue Code, he stated that there is no presumption that land in respect of which private rights are not established belongs to the Union of India. The earlier Land Revenue Code of 1879 had been enacted at a time when there was no effective demarcation of power legislative or executive between the Centre and the States. Section 20 of the 1966 Code which was in force when the lands in question were acquired has now expressly provided that any such presumption, where no private rights of persons legally capable of holding property can be established can only be in favour of the State Government. In the present case, according to him, the State Government has not, at any state, asserted that they are owners of the land and, therefore, according to him, section 35 of the Land Revenue Code of 1879 will not be applicable in the present case. Apart from other legal arguments as advanced by the learned Addl. Solicitor General, according to our opinion, this argument is of no significance, because this appeal has been preferred against the judgement and decree of the trial Court under section 18 of the Land Acquisition Act wherein the claimant claiming interest in the land under section 9 of the Land Acquisition Act has to establish his title. Even presuming for a while that the State Government is the owner of the land, according to our opinion, the same will not help, in any way, the respondent-claimants. Apart from that, the learned Counsel Dr. Chandrachud appears to have lost sight of the fact that in views of Article 294 of the Constitution of India, all property and assets which immediately before the commencement were vested in His Majesty for the purposes of the Dominion of India shall vest in the Union Government . In the present case since the suit land is presumed to be in the ownership of the appellants under section 37 of the Bombay Land Revenue Code of 1879, it continued to vest in the Union Government after the Constitution in view of Article 294. In either view of the matter, the aforesaid argument advanced by Dr. Chandrachud on the point of section 20 of the Maharashtra Land Revenue Code of 1966 is rejected.
47. Now the next important question which we have to decide is that though we have come to the conclusion that the Union Government is presumed to be the owner of the suit land, still admittedly for a long time, the respondents are carrying out the manufacturing of salt and, therefore, what is the quantum of compensation which they are entitled to.
48. Dr. Chandrachud, learned Counsel appearing on behalf of the respondents/claimants, contended that the salt work on these lands opened somewhere in the year 1820-21 and for a period in excess of 150 years, the respondents, their ancestors and predecessors in title had been in long, uninterrupted and continuous possession, use and enjoyment of the lands until the acquisition took place by the Notification dated 26-2-1973 issued under section 4 of the Land Acquisition Act followed by a declaration under section 6 dated 11-12-1975. The salt work which is a part of the land, according to him, is a land itself. For the purpose of making of a salt work it is the soil and the earth which is used to prepare a bunding in which sea water is accumulated at high tide. The reservoir, condensor and salt pan are nothing but a natural division carved out on the land, where the heat of the sun progressively increases the density of sea water so that the ultimate residue is salt. Thus, a salt work is unlike any other manufacturing process. The salt work is an integral part of the land and intrinsically constitutes land. Dr. Chandrachud also relied upon certain provisions of the Central Excise and Salt Act, 1944 and the rules framed thereunder. The expression 'salt factory' is defined by an inclusive definition in section 2 ( j ) to include :-
'(i) a place used or intended to be used in the manufacture of salt and all embankments, reservoirs, condensing and evaporating pans, buildings and waste places situated within the limits of such place as defined from time to time by the Collector of Central Excise:
(ii) all drying grounds and storage platforms and storehouses appertaining to any such place;
(iii) land on which salt is spontaneously produced.'
Rule 2(xiv) provides that salt work 'means any defined area within a salt factory which is used for the manufacture of salt and which is separately registered as such in the public accounts'. Thus the salt factory and salt work are defined with reference to a place, and land.
Sections 31 and 32 of the Central Excise and Salt Act, 1944 expressly provided that in respect of those salt works where the proprietor was entitled under the provisions of section 17 of the Bombay Salt Act, 1890 to a licence to manufacture or excavate or collect natural salt such proprietor shall continue to be entitled on an application to a licence to manufacture salt and to an annual renewal thereof. It is pertinent to note that this entitlement was absolute and could be defeasible only if the licence was cancelled for a breach of its provisions or, if no salt was manufactured for the previous three years or if the production during the previous three years fell below 5000 mounds per annum. The respondents were entitled to a licence under section 17 of the Salt Act of 1890 because their salt work was in operation at the date of that Act. Thus, the entitlement of the respondents to a manufacturing licence was not limited to a time period and would not come to an end on the efflux of time. The eventualities upon which the licence could be cancelled by the State were expressly those designed to protect the revenue concerns of the State such as the requirement that at least 5000 mounds per annum should be produced. So it can be seen that subject to the due fulfillment of the conditions imposed under the licence in regard to the protection of the revenue there was an absolute right of renewal of the licence.
49. Salt was a source of significant revenue to the British Government prior to Independence. The regulations imposed by various statutory provisions were designed to protect the revenue yielding concerns of the Government. There was no attempt to acquire the ownership of the land in possession of private holders or to expropriate salt producing lands.
50. Further the law recognised the interest of the Shilotris in the land itself. As per the provisions of the Salt Act and Instructions in the Salt Manual, Shilotris were not bare licensees empowered to manufacture salt. The Shilotris such as the respondents had an interest in the land, an interest to possess and enjoy the land and to reap the benefits of the soil.
51. The respondents were carrying out the salt work for more than 150 years till the lands were acquired in the year 1973 and they as well as their predecessor-in-title enjoyed uninterrupted possession, use and enjoyment of the lands. It is also pertinent to note that never prior to the acquisition was their interest, right or entitlement questioned by the Dominion Government or by the Union of India or by anyone else.
52. As per the Statutes, Salt Manual and the licence, interest of the respondents in the lands and in the salt work which was the part of the lands, has been inheritable and transferable. As observed by the Supreme Court in Swadesh Ranjan Sinha v. Haradeb Banerjee, : AIR1992SC1590 , the ownership denotes the relation between a person and an object forming the subject matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. (Salmond on Jurisprudence, 12th Edn., Ch. 8, P. 246). There are various rights or incidents of ownership all of which need not necessarily be present in every case. In the present case, the respondents as Shilotris, had important rights to possess the salt work including the lands to use and enjoy, and a right to consume, destroy or alienate the lands subject to permission of the Salt Department. Possession, use, enjoyment and the right to carry on lawful, business were important components of that bundle of rights which the respondents were entitled to. Further, the aforesaid rights were virtually granted in perpetuity subject to following the conditions of licence and all these important rights with reference to Salt factory and lands were heritable and transferable. From the aforesaid discussion, the respondents/claimants had all the rights with reference to salt pan and the lands in perpetuity subject to the following rules and regulations under the Salt Act and the Rules framed thereunder.
53. 'Land' is defined by section 3(a) of the Land Acquisition Act, 1894 to include benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth. The definition of immovable property in section 3 of the Transfer of Property Act, 1882 and section 3(26) of the General Clauses Act are also material in this regard. Thus, the salt work and land are one integral entity in which the present respondents have a valuable interest which they and their predecessors enjoyed for a very long period, i.e. more than 150 years uninterruptedly. Hence the tenure of the respondents/claimants was of a perpetual permanent character subject to following the terms and conditions of the licence. So we think that even if the respondents/claimants are not the owners of the land acquired, but they had a permanent tenure of transferable character subject to rules and regulations and therefore the claimants have valuable interest in the lands which could not have been determined unless they commit breach of rules and regulations. In view of the aforesaid discussion, we are of the opinion that though the respondents/claimants are not the owners of the suit lands, still in view of their tenure was permanent and perpetual in character, they have virtually all the rights of ownership subject to following rules and regulations and therefore their interest will have to be calculated accordingly.
54. At this stage we may mention that the learned Counsel Mr. Rajiv Kumar appearing on behalf of the appellant No. 3 strenuously contended that since the title of the suit lands vests in Union Government, the respondents/claimants are not entitled to any compensation as held by the Land Acquisition Officer. We do not accept the aforesaid argument advanced by the learned Counsel Mr. Rajiv Kumar in view of the discussion about the right and interest of the claimants in the lands acquired with reference to statutory provisions which we discussed as above.
55. The next question we have to decide is what is the valuation of the lands. For that purpose, the respondents/claimants have examined one Jivan Narayan Kulkarni as an expert witness. He has also given his valuation report which is at page 745. As per the said valuation report, he claimed Rs. 25,157/- as compensation per acre. Further he claimed Rs. 25,157/- per acre towards loss of business and Rs. 320/- per acre towards loss of goodwill. The respondents/claimants have also relied upon sale instances. According to our opinion, since the respondents are relying upon sale instances and if there are comparable sale instances, it is better to arrive at compensation of the lands which is subject matter of acquisition.
56. The respondents rely upon the two instances and the map relevant in regard to the location of the said lands vis-a-vis the lands of the respondents is at Vol. II page 765. The first instance is the Award dated 11-9-1989 passed in L.A.R. No. 8/1984 by the Civil Judge, Senior Division, Raigad which is at Volume II, p. 769. The said lands in question admeasure 2 acres 24 Gunthas. The lands are situated at Bhendkal in Taluka of Uran which is close proximity of the suit lands. Section 4 Notification in respect of the said acquisition was dated 3-2-1970 and the said land was acquired for industrial, commercial and residential purpose of developing the Trans-Thane/Panvel areas. The S.L.O. by his Award dated 5-9-1983 awarded an amount of Rs. 7,200/- per acre against a claim of Rs. 80,000/- per acre. The said amount was enhanced to Rs. 10/- per sq.mtr which works out to Rs. 40,000/- per acre. The aforesaid instance, according to the appellants, is not comparable. In the present case, by acquisition, the Government has acquired about 3,500/ acres of lands while the aforesaid instance referred to is in respect of acquisition of two acres and 24 Gunthas of land. Further from the record it appears that the land is very close to the Railway Station and, therefore, in view of the ratio of the Supreme Court decision in S.L.A.O. v. S.O. Tumari : AIR1995SC840 wherein the Supreme Court has observed :-
'One aspect which however should not weigh is that determination of land on large extent of acquired land on the basis of price reached by similar parts, must be a matter of lost resort should be adopted when there is no possibility of determining the value of the acquired land on the basis of comparable transaction on larger extent. In the present case, there are other instances relied upon by the respondents/claimants where large extent of lands comparable to the lands acquired in the present acquisition are available and, therefore, we discard the aforesaid sale instance for the purpose of calculating value of lands acquired'.
The second instance relates to lands located in village Jaskhar and bearing Survey No. 298. These lands are in geographical proximity to the lands at village Bhendkal which we have discussed earlier. The said lands were acquired. In respect of the said lands, section 4 Notification was issued on 3-2-1970. The S.L.A.O. passed the Award on 18-3-1983 at the rate of Rs. 7,200 per acre. By the said acquisition, the Government has acquired huge lands of about 4000 acres. On 26-4-1984 the State Government of Maharashtra issued Government Resolution by virtue of which persons whose lands were acquired for Nav Shiv Project excluding salt pan lands were to be paid Rs. 30,000/- per acre inclusive of solatium. Since solatium of 15 per cent is excluded from the value it would work to about Rs. 26,100/- per acre. Final order for payment of compensation at the rate of Rs. 30,000/- per acre was issued on 3-7-1984 which is at Vol. 12 at page 6826. According to our opinion, this is a comparable sale instance taking into consideration the fact that the huge land was acquired and the land is in vicinity of the lands presently acquired. Before arriving at the figure on the basis of the aforesaid instances, we will have to consider one more argument advanced by the respondents which we will have to dispose it off before calculating compensation towards the lands acquired. It was contended on behalf of the appellants, more particular Mr. Rajiv Kumar, the learned Counsel appearing on behalf of the appellant No. 3 that after issuance of 1st Notification under section 4 on 3-2-1970, the respondents/claimants have submitted their claim of compensation wherein they have claimed Rs. 14,800/- per acre. Thereafter in the year 1976, they again claimed the same compensation which is at page 1474 in Vol. IV. Admittedly, the Notification issued by the Government on 3-2-1970 was cancelled and the Government issued fresh Notification on 26-2-1973. According to the learned Counsel Mr. Rajiv Kumar for the appellant No. 3, even in the year 1976, the respondents claimed total compensation of Rs. 14,800/- per acre and even according to the respondents/claimants the valuation of the lands, in all total, was not more than Rs. 14,800/- per acre. He further contended that it is only in the year 1983 the respondents/claimants claimed compensation of about Rs.1,60,000/- per acre (which is at Vol. IV p427).
57. Section 25 of the Land Acquisition Act, 1894 prior to amendment by the Act 68/1984, provided that where an applicant had made a claim for compensation before the Collector in pursuance of a notice under section 9, then in a reference under section 18, the applicant would not be entitled to an award of more than what he had claimed before the Collector or less than what had been awarded by the Collector. Even presuming that section 25 prior to the amendment of 68 of 1984 is applicable to the present case, still, according to our opinion, bar will not be attracted. The penal provision of section 25(1) prior to the amendment by the Act of 68 of 1984 preventing claimants from claiming compensation more than what he had claimed before the Collector is applicable only when the claimants submit his claim after the receipt of the notice under section 9. In the present case, admittedly the claimants had received notice under section 9 on 31-10-1983 and, therefore, the claimants will be still entitled to enhance his claim thereafter as he has done, as there is no bar of section 25 as it was earlier to the amendment of 1984. However, the appellants are justified in drawing the attention of the Court that even in the year 1976, according to the respondents/claimants' own claim, valuation of the suit lands was Rs. 14,800/- per acre. Dr. Chandrachud, the learned Counsel appearing on behalf of the respondents/claimants, contended that at the time when the respondents/claimants submitted their claims in the year 1976, they had no information about the compensation granted by the Government of Maharashtra on 26-4-1984 and, therefore, in view of the fact that the Government accepted the valuation of the suit land as Rs. 30,000/- per acre, the claimants may not be penalised for their ignorance about their valuation of lands in the year 1973.
58. We have already earlier held that instance dated 26-4-1984 wherein the State Government of Maharashtra paid Rs. 30,000/- per acre to the claimants is a comparable instance. That means the claimants in that instance received compensation for their lands as on 3-2-1970 in a lumpsum on 3-7-1984 at the rate of Rs. 30,000/- per acre. Since the claimants also rely on this instance on the ground that since the lands in this instance are near and somewhere salt lands which were suppressed, then the claimants must also be put on par so as to receive Rs. 30,000/- in the year 1984. In view of the amendment in the year 1984 to the Land Acquisition Act, according to our opinion, if the claimants were awarded Rs. 12,000/- per acre, they would receive a sum of Rs. 32,000/- in the year 1984, i.e. they will receive Rs. 10,000/- per acre as a compensation, Rs. 16,000/- interest at the rate of 12 per cent for 11 years approximately 132% and 4,000 solatium at the rate of 30%, so in all 32,000/-. In fact in the instance relied upon by the respondents/claimants, the claimants in those cases only received Rs. 30,000/- per acre. Mr. Gangal, learned Counsel appearing on behalf of the respondents contended that in the instance relied upon section 4 Notification was given on 3-2-1970, while in the present Land Acquisition, section 4 Notification is on 26-2-1973. In view of Industrialization and rapid development around, the said rate given of Rs. 12,000/- per acre must be enhanced reasonably. According to our opinion, there is no need of enhancing the rate per acre because admittedly in the said sale instance where the Government has awarded Rs. 30,000/ per acre all together compensation, the claimants were the owners of lands but here we have already held that the respondents were not the owners of the lands.
59. As regards the constructions done by the respondents/claimants, the trial Court has awarded Rs. 5,000/- per acre. In the appeal preferred by the claimants, the respondents/claimants claimed for Rs. 10,000/- per acre on the ground of cost of construction. On the hand, Mr. Rajiv Kumar, the learned Counsel appearing on behalf of the appellant No. 3 contended that the expert witness Mr. Jeevan Kulkarni has arrived the costs of construction at Rs. 4,100/- per acre, while Shri Balaram Kadu, the other witness examined by the respondents/claimants claimed Rs. 10,000/- per acre. However, Mr. Balaram Kadu does not appear to be reliable in view of the fact that he has not produced anything to substantiate his claim. According to our opinion, the trial Court in whose presence all the witnesses were examined, has come to a reasonable finding about the compensation towards cost of construction of Rs. 5,000/- per acre and we do not wish to disturb the said finding.
60. The respondents/claimants, in this case, have filed cross appeals wherein they have also claimed compensation for the loss of business due to the land acquisition. The trial Court rejected their claims. Mr. Rafique Dada, learned Addl. Solicitor General, stated that in none of the acquisition proceedings wherein the salt lands, pans were acquired, compensations towards loss of business were granted. Apart from that, in the present case, though section 4 Notification was issued on 26-2-1973, the possession of the land was actually taken on 5-10-1984. During the aforesaid time, though their licences were expired, in view of the High Court orders they were allowed to carry out salt manufacturing process. Taking into consideration all this evidence, according to our opinion, the trial Court was justified in rejecting their claims for the loss of business.
61. Before passing the final order, we would like to express our appreciation for erudite effective arguments advanced by the learned Additional Solicitor General Shri Rafique Dada, assisted by Shri V.T. Tulpule, Government Pleader, Shri .K.K. Tated, Asstt. Govt. Pleader for the appellant Nos. 1 and 2, Shri Rajiv Kumar, for appellant No. 3 and Shri V.S. Master for Union of India and also for effective arguments advanced by Shri V.A. Bobde, Senior Counsel, Dr. D. V. Chandrachud, Shri S.H. Doctor, Shri V. A. Gangal, Shri Abhay Oak, Shri S.M. Gorwadkar & Miss Fatima Curtay for the respondents.
Hence the following order.
62. i) First Appeal No. 455 of 1994 and Cross Appeal No. 741 of 1995 are partly allowed. The Judgment and Decree dated 23-6-1993 passed by the District Judge, Raigad at Raigad in Land Acquisition Reference No. 184 of 1986 are set aside, and are substituted by the following order.
(ii) The finding of the learned trial Court that the respondents/claimants are the owners of the lands, is set aside and it is hereby declared that the appellant No. 1 is the owner of the suit lands. The appellant No. 2 is directed to pay the amount of Rs. 12,000/- per acre to the respondents/claimants plus the amount of Rs. 5,000/- towards the costs of construction per acre to the respondents/claimants together with additional compensation at the rate of 12 per cent per annum of the adjudicated amount (Rs. 17,000/- in all ) from the date of the Notification under section 4(1) of the Land Acquisition Act, i.e. from 26-2-1973 till the date of the award under section 11 of the said Land Acquisition Act and also along with the amount of solatium at the rate of 30 per cent on the market value of the land.
(iii) The appellant No. 2 to pay interest on the decretal amount calculated at the rate of 9 per cent per annum for one year from the date of possession and thereafter at the rate of 15 per cent per annum till the actual realisation of the decretal amount.
(iv) The claim made by the respondents/claimants in their Appeal No. 741 of 1995 for the loss of business due to acquisition of lands, is dismissed.
(v) The appellant No. 2 to pay the proportionate costs of the proceedings before the trial Court under section 18 of the Land Acquisition Act. However, there shall be no order as to costs in both of these appeals.
(vi) Pending the hearing and final disposal of this appeal, this Court has allowed the respondents/claimants to withdraw 25 percent of the decretal amount on furnishing the Bank Guarantee. The said Bank Guarantee shall stand discharged on 1-12-1996. We make it clear that those claimants who have not furnished the Bank Guarantee, shall also be allowed to withdraw 25 per cent of the decretal amount on 1-12-1996.
(vii) Office is directed to draw the decree in terms of the aforesaid order on or before 1-12-1996.
(viii) Certified copy expedited.
(ix) Parties are directed to act on an ordinary copy duly authenticated by the Personal Secretary of this Court.
Appeals allowed with modification.